[Federal Register Volume 79, Number 105 (Monday, June 2, 2014)]
[Proposed Rules]
[Pages 31783-31841]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-12155]
[[Page 31783]]
Vol. 79
Monday,
No. 105
June 2, 2014
Part IV
Department of Transportation
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Federal Highway Administration
23 CFR Part 450
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Federal Transit Administration
49 CFR Part 613
Statewide and Nonmetropolitan Transportation Planning; Metropolitan
Transportation Planning; Proposed Rule
Federal Register / Vol. 79 , No. 105 / Monday, June 2, 2014 /
Proposed Rules
[[Page 31784]]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 450
Federal Transit Administration
49 CFR Part 613
[Docket No. FHWA-2013-0037; FHWA RIN 2125-AF52; FTA RIN 2132-AB10]
Statewide and Nonmetropolitan Transportation Planning;
Metropolitan Transportation Planning
AGENCY: Federal Highway Administration (FHWA), Federal Transit
Administration (FTA); U.S. Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FHWA and the FTA are jointly issuing this NPRM to propose
revisions to the regulations governing the development of metropolitan
transportation plans and programs for urbanized areas, State
transportation plans and programs, and the congestion management
process. The changes reflect recent passage of the Moving Ahead for
Progress in the 21st Century Act (MAP-21). The MAP-21 continues many
provisions related to transportation planning from prior laws; however,
it introduces transformational changes and adds some new provisions.
The proposed rule would make the regulations consistent with current
statutory requirements and proposes the following: A new mandate for
State departments of transportation (States) and metropolitan planning
organizations (MPO) to take a performance-based approach to planning
and programming; a new emphasis on the nonmetropolitan transportation
planning process, by requiring States to have a higher level of
involvement with nonmetropolitan local officials and providing a
process for the creation of regional transportation planning
organizations (RTPO); a structural change to the membership of the
larger MPOs; a new framework for voluntary scenario planning; revisions
to the integration of the planning and environmental review process;
and a process for programmatic mitigation plans.
DATES: Comments must be received on or before September 2, 2014. Late-
filed comments will be considered to the extent practicable.
ADDRESSES: Mail or hand deliver comments to: Docket Management
Facility, U.S. Department of Transportation, 1200 New Jersey Avenue
SE., Washington, DC 20590, or submit electronically at http://www.regulations.gov, or fax comments to (202) 493-2251. All comments
should include the docket number that appears in the heading of this
document. All comments received will be available for examination and
copying at the above address from 9 a.m. to 5 p.m., e.t., Monday
through Friday, except Federal holidays. Those desiring notification of
receipt of comments must include a self-addressed, stamped postcard or
may print the acknowledgment page that appears after submitting
comments electronically. Anyone is able to search the electronic form
of all comments in any one of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, or labor union). You may review the U.S.
Department of Transportation's (DOT) complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477).
Electronic Access and Filing
This document and all comments received may be viewed online
through the Federal eRulemaking portal at http://www.regulations.gov.
The Web site is available 24 hours each day, 365 days each year. An
electronic copy of this document may also be downloaded by accessing
the Office of the Federal Register's home page at: https://www.federalregister.gov.
FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Harlan W. Miller,
Planning Oversight and Stewardship Team (HEPP-10), (202) 366-0847; or
Ms. Anne Christenson, Office of the Chief Counsel (HCC-30), (202) 366-
1356. For the FTA: Ms. Sherry Riklin, Office of Planning and
Environment, (202) 366-5407; Mr. Dwayne Weeks, Office of Planning and
Environment, (202) 493-0316; or Mr. Christopher Hall, Office of Chief
Counsel, (202) 366-5218. Both agencies are located at 1200 New Jersey
Avenue SE., Washington, DC 20590. Office hours are from 8:00 a.m. to
4:30 p.m., e.t. for FHWA, and 9 a.m. to 5:30 p.m., e.t. for FTA, Monday
through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Table of Contents for SUPPLEMENTARY INFORMATION
I. Executive Summary
II. Background
III. Major Proposed Revisions to the Planning Rule
IV. Section-by-Section Discussion
V. Regulatory Analyses and Notices
I. Executive Summary
A. Purpose of the Regulatory Action
The MAP-21 (Pub. L. 112-141) transforms the Federal-aid highway
program and the Federal transit program by requiring a transition to
performance-driven, outcome-based approaches to key areas. With respect
to planning, although MAP-21 leaves the basic framework of the planning
process largely untouched, the statute introduces critical changes to
the planning process itself by requiring States, MPOs, and providers of
public transportation to link investment priorities (the transportation
improvement program of projects) to the achievement of performance
targets that they would establish to address performance measures in
the key areas such as safety, infrastructure condition, congestion,
system reliability, emissions, and freight movement.
Accordingly, this proposed rule is central to the implementation of
the overall performance management framework created by MAP-21.
Additional changes include a new emphasis on nonmetropolitan
transportation planning, changes to the structure of MPOs that serve a
transportation management area (TMA), and codification of some existing
best practices.
B. Summary of the Major Provisions of the Regulatory Action in Question
As a fundamental element of a performance management framework,
States, MPOs, and providers of public transportation will need to
establish targets in key national performance areas to document
expectations for future performance. This NPRM proposes in 23 CFR
450.206 and 450.306 that States, MPOs, and providers of public
transportation coordinate their targets. The MAP-21 requires that MPOs
reflect those targets in their metropolitan transportation plan and
encourages States to do the same in their long-range statewide
transportation plan. Accordingly, this NPRM proposes that MPOs would
reflect those targets in the metropolitan transportation plans. In
addition, FHWA and FTA propose that States should reflect the targets
in their long-range statewide transportation plans. Both States and
MPOs would describe the anticipated effect toward achieving the targets
in their respective transportation improvement programs.
In addition to these proposed changes to the planning provisions,
MAP-21 contains new performance-related provisions requiring States,
MPOs, and public transportation providers to
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develop other performance-based plans and processes. This NPRM proposes
in Sec. Sec. 450.206 and 450.306 that MPOs and States must integrate
the goals, objectives, performance measures, and targets of other
performance-based plans and processes into their planning processes.
This proposal also places a new emphasis on the importance of
nonmetropolitan transportation planning. Proposed Sec. Sec. 450.208
through 450.210 and 450.216 require the States to work more closely
with nonmetropolitan areas. Additionally, this NPRM proposes that
States should have the option of designating RTPOs to help address the
planning needs of the nonmetropolitan areas of the State.
The MAP-21 made two changes specific to the metropolitan planning
process. The first change affects the policy board structure of large
MPOs. For each MPO serving a TMA, the planning statutes and current
planning regulations identify a list of government or agency officials
that must be on that policy board. Consistent with MAP-21, this NPRM
proposes in Sec. 450.310 to add representation by providers of public
transportation to this list of officials. The second change proposes in
Sec. 450.324 of this NPRM that MPOs may use scenario planning, an
analytical framework to inform decisionmakers about the implications of
various investments and policies on transportation system condition and
performance, during the development of their plan. Both of these
proposed changes will support the effective implementation of a
performance-based planning process.
In addition to changing the planning statutes, MAP-21 continues
efforts to expedite project delivery through better coordination
between the transportation planning process and the environmental
review process. Section 1310 of MAP-21 creates an additional process
for integrating planning and the environmental review activities, but
also preserves other authorities for integration. Sections 450.212 and
450.318 of the planning regulations are among those pre-MAP-21
authorities. Together with implementing regulations for the National
Environmental Policy Act of 1969 \1\ adopted by the President's Council
on Environmental Quality \2\ and the FHWA and FTA,\3\ Sec. Sec.
450.212 and 450.318 have long provided pathways for using
transportation planning information and decisions in the environmental
review process. With one exception, FHWA and FTA propose to retain the
existing regulatory provisions in Sec. Sec. 450.212 and 450.318, as
well as the guidance in Appendix A. The agencies will address
implementation of section 1310 of MAP-21 and any needed updates to
provisions on pre-MAP-21 integration authorities through separate
rulemaking or guidance. The exception is the proposed deletion of
paragraph (d) of Sec. 450.318 due to revisions made to 49 U.S.C. 5309
by MAP-21 (references to mandatory Alternatives Analysis within
Appendix A are also proposed to be removed consistent with those
changes). More specifically, MAP-21 removed the requirement for a
stand-alone alternatives analysis for projects that seek section
5309(d) or (e) funding. In addition, the proposed new sections 450.214
and 450.320 would provide guidance on the optional development of
programmatic mitigation plans for use during the project development
and environmental review process.
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\1\ 42 U.S.C. 4321, et seq.
\2\ 40 CFR parts 1500-1508.
\3\ 23 CFR part 771.
Summary--Key Changes Proposed to the Planning Rule by This NPRM
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Key regulatory
Proposed change Description section(s)
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Performance Based Planning The statewide and 23 CFR 450.206(c),
and Programming. metropolitan 23 CFR 450.208(g),
transportation 23 CFR 450.216(f),
planning processes 23 CFR 450.218(r),
shall provide for 23 CFR 450.226, 23
the use of a CFR 450.300(a), 23
performance-based CFR 450.306(a), 23
approach to CFR 450.306(d), 23
transportation CFR 450.314(a), 23
decisionmaking to CFR 450.314(e), 23
support the CFR 450.314(g), 23
national goals CFR 450.324(f)(3),
described in 23 23 CFR
U.S.C. 150(b) and 450.324(f)(4), 23
the general CFR
purposes described 450.324(i)(1)(iii),
in 29 U.S.C. 5301. 23 CFR
These processes are 450.324(i)(2), 23
where CFR 450.326(c), 23
decisionmaking and CFR 450.326(d), 23
investment CFR 450.340.
priorities would be
linked to targets
in key areas. See
23 U.S.C. 150 and
49 U.S.C. 5326 and
5329.
New emphasis on the A State may 23 CFR 450.210(d).
importance of establish and 23 CFR
nonmetropolitan designate Regional 450.208(a)(4), 23
transportation planning. Transportation CFR 450.210(b), 23
Planning CFR 450.216(g), 23
Organizations CFR 450.218(c), 23
(RTPOs). CFR 45.222(c).
State consultation
with
nonmetropolitan
local officials in
the statewide
planning process
becomes State
cooperation with
nonmetropolitan
local officials or,
if appropriate,
RTPOs.
Changes specific to the MPOs that serve an 23 CFR
metropolitan planning area designated as 450.310(d)(1)(ii).
process. a TMA shall include 23 CFR 450.324(i).
representation by
providers of public
transportation.
MPOs may use
scenario planning
during the
development of
their plan.
Programmatic Mitigation..... States and MPOs may 23 CFR 450.214, 23
develop CFR 450.320.
programmatic
mitigation plans to
address potential
environmental
impacts of future
transportation
projects as part of
the statewide or
metropolitan
transportation
planning process.
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C. Costs and Benefits
The FHWA and FTA expect that the proposed regulatory changes to the
planning process would improve decisionmaking through increased
transparency and accountability and support the national goals
described in 23 U.S.C. 150(b) and the general purposes described in 49
U.S.C. 5301. The FHWA and FTA have not been able to find data or
empirical studies to assist it in monetizing or quantifying the
benefits of this NPRM. In addition, estimates of the benefits of this
NPRM would be difficult to develop. The proposed rule would promote
transparency by requiring the establishment of performance targets in
key areas, such as safety, infrastructure condition, system
reliability, emissions,
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and congestion, and by expressly linking investment decisions to the
achievement of such targets. This would be documented in plans or
programs developed with public review. The proposal would establish
accountability through mandating reports on progress toward meeting
those targets.
Other elements of the proposal also would improve decisionmaking,
such as representation by providers of public transportation on each
MPO that serves a TMA, updating the metropolitan planning agreements,
requiring States to have a higher level of involvement with
nonmetropolitan local officials, and providing an optional process for
the creation of RTPOs.
The FHWA and FTA estimate the total cost of this proposed rule is
$30.8 million annually. To implement the proposed changes in support of
a more efficient, performance-based planning process, FHWA and FTA
estimate that the aggregate increase in costs attributable to the
proposed rulemaking for all 52 States \4\ and 420 (estimated) MPOs is
approximately $28.3 million per year. These costs are primarily
attributable to an increase in staff time needed to meet the proposed
requirements. For the estimated 600 total providers of public
transportation that operate within metropolitan planning areas, the
cost would be $2.4 million per year in total. The total Federal, State,
and local cost of the planning program is $1,166,471,400. As the cost
burden of this rule is estimated to be 2.6 percent of the total
planning program, FHWA and FTA believe the economic impact of this
rulemaking would be minimal and the benefits of implementing this
rulemaking would outweigh the costs.
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\4\ This number (52 States) includes the 50 States, the District
of Columbia, and Puerto Rico. This is consistent with the definition
of ``States'' in the current and proposed regulations at 23 CFR
450.104.
Summary of Average Annual Regulatory Costs and Burden Hours of Effort
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Average
Total additional Non-Federal additional
Entity cost share (20%) person hours per
agency
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TMA MPOs (210)............................................ $18,402,300 $3,680,500 1,800
Non-TMA MPOs (210)........................................ 3,909,200 781,800 400
States (52)............................................... 6,075,800 1,215,200 2400
Providers of Public Transportation (600).................. 2,440,000 488,000 100
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Total................................................. 30,827,300 6,165,500
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II. Background
1. Introduction to the Planning Process
The Statewide and Nonmetropolitan Transportation Planning program
and the Metropolitan Transportation Planning program provide funding to
support cooperative, continuous, and comprehensive (3-C) planning for
making transportation investment decisions throughout each State--both
in metropolitan and nonmetropolitan areas. Since the 1962 Federal-aid
Highway Act,\5\ Federal authorizing legislation for expenditure of
surface transportation funds has required metropolitan and statewide
transportation plans and transportation improvement programs to be
developed through a 3-C planning process. Over successive
reauthorization cycles, including the passage of MAP-21 in July 2012,
Congress has revised and expanded the requirements for 3-C planning.
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\5\ Public Law 87-866, 76 Stat. 1145 (1962).
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The Statewide and Nonmetropolitan Transportation Planning Process
States must undertake a 3-C statewide transportation planning
process to develop a multimodal long-range statewide transportation
plan and a statewide transportation improvement program (STIP).\6\ The
long-range statewide transportation plan must provide for the
development of transportation facilities that function as an intermodal
State transportation system and must cover at least a 20-year planning
horizon at the time of adoption by the State. There is not a required
update cycle for the long-range statewide transportation plan. When
developing a plan, States need to cooperate with the MPOs in the
metropolitan areas. In nonmetropolitan areas, States must cooperate
with local elected officials who have the responsibility for
transportation. Some States may have regional planning organizations to
help support the planning process in nonmetropolitan areas. States also
must provide an opportunity for public comment on the long-range
statewide transportation plan. As part of public engagement, FHWA and
FTA encourage States to include minority and low-income populations and
otherwise incorporate environmental justice principles into the
statewide and nonmetropolitan planning process and documents as
appropriate.
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\6\ See 23 U.S.C. 135.
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In addition, States must develop a federally approved STIP at least
once every 4 years. The STIP contains a 4-year program of projects, and
must be consistent with the long-range statewide and metropolitan
transportation plans. The STIP must incorporate the transportation
improvement programs (TIPs) developed by MPOs either directly or by
reference without alteration. Finally, the STIP must identify the
source of funding that is reasonably expected to be available to
support the program of projects in the STIP. When the State submits the
STIP to FHWA and FTA for approval, the State must certify that the
metropolitan and statewide and nonmetropolitan transportation planning
processes are in compliance with applicable requirements. The FHWA and
FTA will approve the STIP if they jointly determine that the STIP
substantially meets the statewide and nonmetropolitan transportation
planning requirements.
The Metropolitan Transportation Planning Process
Metropolitan transportation planning occurs in urbanized areas with
a population of 50,000 or greater.\7\ An MPO is the policy board of the
organization created and designated by the Governor and local officials
to carry out the metropolitan planning process in an urbanized area.
The boundary of the metropolitan planning area covered by the MPO
planning process is established by agreement between the Governor and
the MPO and, in general, encompasses the current urbanized area
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and the area to be urbanized during a 20-year forecast period. Certain
urbanized areas--generally those over 200,000 in population--are
designated as TMAs.
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\7\ 23 U.S.C. 134.
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An MPO establishes the investment priorities of Federal
transportation funds in its metropolitan areas through the metropolitan
transportation plan and TIP. Each MPO, regardless of size, must prepare
a metropolitan transportation plan and update it every 4 or 5 years.
The plan must cover at least a 20-year planning horizon at the time of
adoption by the MPO. Before it adopts its plan, the MPO must provide a
reasonable opportunity for public comment on the plan's content. As
part of public engagement, FHWA and FTA encourage MPOs to include
minority and low-income populations and otherwise incorporate
environmental justice principles into the metropolitan planning process
and documents as appropriate.
The MPO, in cooperation with the State and providers of public
transportation, must also develop a TIP. The TIP is a prioritized
listing/program of transportation projects covering a period of 4
years, and must include a financial plan that describes the source of
funding that would be reasonably expected to be available to support
the projects in the TIP. The MPO must update and approve the TIP at
least once every 4 years. Prior to approving the TIP, the MPO must
provide a reasonable opportunity for public comment on the TIP. The TIP
also is subject to approval by the Governor. When the MPO submits the
TIP to the State, the MPO must certify that the metropolitan
transportation planning process is in compliance with applicable
requirements.
In the TMAs, the metropolitan transportation planning process also
must include a congestion management process (CMP).\8\ The CMP provides
for the effective management of new and existing transportation
facilities through the use of travel demand reduction and operational
strategies.
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\8\ 23 U.S.C. 134(k)(3).
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The FHWA and FTA must certify the transportation planning process
in TMAs at least once every 4 years. During that certification process,
FHWA and FTA will review whether the process complies with the
metropolitan transportation planning requirements, including the new
MAP-21 requirements.
2. What Does MAP-21 Do?
The MAP-21 leaves the basic framework of the planning process, as
described above, largely untouched. However, MAP-21 introduces
transformational changes to the planning process to increase
transparency and accountability.\9\ Most significantly, States and MPOs
now must take a performance-based approach to planning and programming,
linking investment decisionmaking to the achievement of performance
targets.\10\ Along with its emphasis on performance-based planning and
programming, MAP-21 emphasizes the nonmetropolitan transportation
planning process by requiring States to have a higher level of
involvement with nonmetropolitan local officials and providing for the
optional creation of RTPOs. The MAP-21 also makes some structural
changes to the membership of the MPOs that serve a TMA. Finally, MAP-21
includes voluntary provisions related to scenario planning and
developing programmatic mitigation plans. Many of these non-performance
management changes codify existing best planning practices.
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\9\ MAP-21 sections 1201 and 1202 revising 23 U.S.C. 134 and
135; MAP-21 sections 20005 and 20006 revising 49 U.S.C. 5303 and
5304.
\10\ By October 1, 2017, the Secretary of Transportation must
submit to Congress a report evaluating the overall effectiveness of
performance-based planning and the effectiveness of the performance-
based planning process of each State and MPO. In addition, the
Secretary will be required to report on the extent to which the MPOs
have achieved the performance targets. 23 U.S.C. 134(l) and
135(h)(2) and 49 U.S.C. 5303(l) and 5304(h)(2).
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3. Stakeholder Engagement
Beginning in 2009, FHWA and FTA initiated a series of peer
exchanges, conferences, and workshops to develop a framework for
performance-based planning and programming. These sessions explored how
States, MPOs, regional planning organizations, and providers of public
transportation were implementing performance-based planning and
programming, both individually and in concert with their planning
partners and stakeholders. During FHWA's and FTA's outreach efforts,
the States and MPOs emphasized the need to integrate performance-based
planning and programming into the existing, long-standing planning
processes, and to avoid creating a separate or distinct process for
performance-based planning.
After the passage of MAP-21, FHWA and FTA continued to engage
stakeholders to discuss how FHWA and FTA could best implement the
various MAP-21 changes to the planning process. This outreach included
ongoing workshops on performance-based planning and programming,
general and topic-based Webinars, an online dialogue, and participation
at stakeholder meetings and conferences. The FHWA and FTA hosted
Webinars on the planning provisions of MAP-21, as well as specific
topics such as performance-based planning and programming. Participants
in the Webinars included States, MPOs, and providers of public
transportation.
The FTA also conducted an online dialogue on the topic of TMA MPO
structure and the new MAP-21 requirement to include representation by
providers of public transportation in that structure. Issues raised in
the dialogue included voting representation and determining the process
for inclusion of providers of public transportation on MPOs. A
transcript from this online dialogue is included with the docket for
this NPRM.
A list of the various stakeholder outreach initiatives, including
any notes, meeting minutes, or recordings taken during the outreach,
and comments received prior to publication, if any, are included in the
docket for this NPRM. External stakeholders frequently commented on the
need for flexibility and simplicity in implementing MAP-21 requirements
given the varying size, capabilities, and operating environments of
States, MPOs, and providers of public transportation. Stakeholders also
expressed concerns regarding potential difficulties, uncertainties, and
risks associated with implementing new provisions such as performance-
based planning and programming.
III. Major Proposed Revisions to the Planning Rule
A. Performance-Based Planning and Programming
The MAP-21 transforms the Federal-aid highway program and the
Federal transit program by requiring a transition to a performance-
driven, outcome-based program that provides for a greater level of
transparency and accountability, improved project decisionmaking, and
more efficient investment of Federal transportation funds.\11\ As part
of this new performance-based approach, recipients of Federal-aid
highway program funds and Federal transit funds would be required to
link the investment priorities contained in the STIP and TIP to
achieving performance targets. This proposed rule is one of several
proposed rules that would establish the basic elements of a performance
driven, outcome-based program. This proposed rule is
[[Page 31788]]
important to the FHWA's and FTA's overall implementation of the
performance management provisions of MAP-21 because the planning
process brings all of the elements together by tying performance to
investment decisionmaking.
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\11\ See, e.g., 23 U.S.C. 150(a).
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Several MAP-21 provisions administered by FHWA and FTA focus on the
achievement of performance outcomes. In implementing these provisions,
FHWA and FTA are undertaking a number of separate but related
rulemakings. This NPRM addresses the metropolitan transportation
planning and statewide and nonmetropolitan transportation planning
provisions of MAP-21. Additional FHWA and FTA performance-related rules
include: Federal-aid Highway Performance Measure Rules [RIN 2125-AF49,
2125-AF53, 2125-AF54], updates to the Highway Safety Improvement
Program Regulations [RIN 2125-AF56], Federal-aid Highway Risk-Based
Asset Management Plan Rule for the National Highway System (NHS) [RIN
2125-AF57], Transit Asset Management Rule [RIN 2132-AB07], and National
and Public Transportation Safety Plans Rule [RIN 2132-AB20].\12\ \13\ A
more detailed discussion of these related rulemakings is included in
FHWA's first proposed Federal-aid Highway Performance Measure Rule,
which is available online at www.fhwa.dot.gov/tpm/.
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\12\ The FTA anticipates publishing a consolidated Advance
Notice of Proposed Rulemaking that will present the two transit
rules under RIN 2132-AB20.
\13\ Another performance-related rule issued by the National
Highway Traffic Safety Administration is the Uniform Procedures for
State Highway Safety Grant Programs, Interim Final Rule, 78 FR 4986
(January 23, 2013) (to be codified at 23 CFR part 1200).
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These performance-related rules for the various FHWA and FTA
programs will implement the basic elements of a performance management
framework, such as establishment of performance measures and targets
and reporting requirements. The planning process brings these elements
together--it is where States, MPOs, and providers of public
transportation will link decisionmaking and investment priorities to
performance targets in key areas.\14\ The FHWA and FTA will establish
national performance measures in key areas, including safety,
infrastructure condition, congestion, system reliability, emissions,
and freight movement.\15\
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\14\ In addition to establishing targets related to the
performance measures identified in Title 23 and Chapter 53 of Title
49, States and MPOs may establish targets related to locally created
measures.
\15\ See 23 U.S.C. 150(b) and 49 U.S.C. 5326(c) and 5329.
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The performance management framework requires States, MPOs, and
providers of public transportation to use these measures to establish
targets in these key national performance areas to document
expectations for future performance.\16\ The proposed regulatory
changes in Sec. Sec. 450.206 and 450.306 mandate States and MPOs,
respectively, to coordinate their targets with each other to ensure
consistency, to the maximum extent practicable. In addition, for
transit-related targets, States and MPOs would need to coordinate their
targets relating to safety and state of good repair with providers of
public transportation to ensure consistency with other performance-
based provisions applicable to transit providers, to the maximum extent
practicable. This coordination through the planning process should help
align MPO and State decisionmaking and advance performance outcomes for
the States.
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\16\ See 23 U.S.C. 134(h)(2), 23 U.S.C. 135(d)(2), 49 U.S.C.
5303(h)(2), and 49 U.S.C. 5304(d)(2).
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The FTA and FHWA request public comment on the following questions
relating to target-setting: What obstacles do States, MPO and transit
providers foresee to the coordination among them that is necessary in
order to establish targets? What mechanisms currently exist or could be
created to facilitate coordination? What role should FHWA and FTA play
in assisting States, MPOs and transit providers in complying with these
new target-setting requirements? What mechanisms exist or could be
created to share data effectively amongst States, MPOs and transit
providers? For those States, MPOs and transit providers that already
utilize some type of performance management framework, are there best
practices that they can share?
Once performance targets are selected, MAP-21 requires that MPOs
reflect those targets in their metropolitan transportation plans and
encourages States to do the same. Accordingly, this NPRM proposes \17\
that, in their transportation plans, MPOs would need to describe these
performance targets, evaluate the condition and performance of the
transportation system, and report on progress toward the achievement of
their performance targets.\18\ In addition, States should include
similar information in their transportation plans.\19\ Importantly, as
part of the State and MPO program of projects (the STIPs and TIPs,
respectively), the States and MPOs would need to describe, to the
maximum extent practicable, the anticipated effect of the investment
priorities (or their program of transportation improvement projects)
toward achieving the performance targets.\20\ As the long-range plans,
STIPs, and TIPs direct investment priorities, it is critical to ensure
that performance targets are considered during the development of these
documents.
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\17\ See proposed Sec. Sec. 450.216, 450.218, 450.324 and
450.326.
\18\ See 23 U.S.C. 134(i)(2) and 49 U.S.C. 5303(i)(2).
\19\ 23 U.S.C. 135(f)(7) and 49 U.S.C. 5304(f)(7).
\20\ See 23 U.S.C. 134(j)(2)(D), 23 U.S.C. 135(g)(4), 49 U.S.C.
5303(j)(2)(D), and 49 U.S.C. 5304(g)(4).
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The MAP-21 performance-related provisions also require States,
MPOs, and public transportation providers to develop other performance-
based plans and processes or impose new requirements on existing
performance-based plans and processes. These performance-based plans
and processes include the Congestion Mitigation and Air Quality
Improvement (CMAQ) Program performance plan,\21\ the strategic highway
safety plan,\22\ the public transportation agency safety plan,\23\ the
highway and transit asset management plans,\24\ and, optionally, a
State freight plan.\25\ This NPRM proposes in Sec. Sec. 450.206 and
450.306 that MPOs and States integrate the goals, objectives,
performance measures, and targets of these other performance plans and
processes into their planning process.\26\ This integration would help
ensure that key performance elements of these other performance plans
are considered as part of the investment decisionmaking process.
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\21\ See 23 U.S.C. 149.
\22\ See 23 U.S.C. 130 and 148.
\23\ See 49 U.S.C. 5329.
\24\ See 23 U.S.C. 119 and 49 U.S.C. 5326.
\25\ See MAP-21 Section 1118.
\26\ See 23 U.S.C. 134(h)(2)(D), 23 U.S.C. 135(d)(2)(C), 49
U.S.C. 5303(h)(2)(D), and 49 U.S.C. 5304(d)(2)(C).
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The metropolitan planning agreement helps facilitate the working
relationship among MPOs, States, and providers of public
transportation. In this NPRM, FHWA and FTA propose to amend Sec.
450.314 to require that MPOs include a description in their
metropolitan planning agreements that identifies how the parties would
cooperatively implement these performance-based planning provisions.
The amended metropolitan planning agreements would identify the
coordinated processes for the collection of performance data, the
selection of performance targets for the metropolitan area, the
reporting of metropolitan area targets, and the reporting of actual
system performance related to those targets. The agreements would also
describe the roles and responsibilities
[[Page 31789]]
for the collection of data for the NHS. Including this description is
critical because of the new requirements for a State asset management
plan for the NHS and establishment of performance measures and
targets.\27\
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\27\ Federal-aid Highway Risk-Based Asset Management Plan Rule
for the National Highway System (NHS) [RIN 2125-AF57].
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The FHWA and FTA seek public comment on how regional planning
coordination can be further improved in situations where multiple MPOs
serve one or several adjacent urbanized areas. Additionally, FHWA and
FTA seek public comment on additional mechanisms that could be created
to improve regional coordination in situations where there may be
multiple MPOs serving a common urbanized area or adjacent urbanized
areas.
B. New Emphasis on Nonmetropolitan Transportation Planning
As indicated by the change in the title to the statutory section,
MAP-21 places a new emphasis on the importance of nonmetropolitan
transportation planning. The MAP-21 requires the States to work more
closely with nonmetropolitan areas. It also gives States the
opportunity to designate RTPOs to help address the planning needs of
the nonmetropolitan area of the State.
Prior to MAP-21, when developing the long-range statewide
transportation plan and the STIP, the State was required to consult
with nonmetropolitan local officials, which meant that the State would
confer with nonmetropolitan local officials and consider their
views.\28\ Under MAP-21 and these proposed regulations, States retain
decisionmaking authority, but would be required to cooperate with
nonmetropolitan local officials, which means that they would be
required to work together to achieve a common outcome.\29\ Changing
from ``consultation'' to ``cooperation'' means States would need to
work more closely with nonmetropolitan local officials in the
development of the long-range statewide transportation plan and the
STIP.
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\28\ See 23 CFR 450.104.
\29\ See 23 CFR 450.104.
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To support States' efforts to cooperate with nonmetropolitan areas,
MAP-21 provides a more formal framework for States to optionally
designate and establish RTPOs.\30\ States have long had the option of
establishing regional planning organizations to conduct transportation
planning in nonmetropolitan areas, and several States have successfully
done so. The MAP-21 codifies this best practice by formally providing
for RTPOs. This NPRM proposes in Sec. 450.210 that States may
designate and establish RTPOs, and that the duties of the RTPO include
the development and maintenance of regional long-range multimodal
transportation plans and regional TIPs and fostering the coordination
of local planning. These regional plans and programs, along with public
involvement, would assist the State in development of the long-range
statewide transportation plan and the STIP.
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\30\ See 23 U.S.C. 135(m) and 49 U.S.C. 5304(l).
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C. Additions to the Metropolitan Planning Process
The MAP-21 made two changes specific to the metropolitan planning
process--one change affects the policy board structure of large MPOs,
and the second establishes a process for scenario planning. Both of
these changes would support the effective implementation of a
performance-based planning process.
First, for each MPO serving a TMA, the planning statutes and
current planning regulations identify a list of government or agency
officials that must be on that policy board, including local elected
officials, administrators or operators of major modes of
transportation, and appropriate State officials. The MAP-21
specifically identifies in this list \31\ representatives of providers
of public transportation. This proposal would add representatives of
providers of public transportation to the list of officials in Sec.
450.310. This NPRM proposes that representatives of providers of public
transportation would have equal decisionmaking rights and authorities
as other officials who are on the policy board of an MPO that serves a
TMA. It is up to the MPO, in cooperation with providers of public
transportation, to determine how this representation will be structured
and established. The MPOs can restructure to meet this requirement
without being redesignated by the Governor and local officials.
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\31\ 23 U.S.C. 134(d) and 49 U.S.C. 5303(d).
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Including public transportation representation on each MPO serving
a TMA supports the new performance requirements for providers of public
transportation, including the coordination of MPO targets with
providers of public transportation, the coordination of public
transportation provider targets with MPOs, and the integration of
public transportation performance plans into the metropolitan
transportation planning process.
Second, this NPRM proposes in Sec. 450.324 that MPOs may use
scenario planning during the development of their metropolitan
transportation plans.\32\ Scenario planning is currently used by many
MPOs as part of their transportation planning process, and FHWA and FTA
consider it a best practice.\33\
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\32\ 23 U.S.C. 134(i)(4) and 49 U.S.C. 5303(i)(4).
\33\ FHWA and FTA have developed resources on scenario planning
such as case studies and a Guidebook that are available at: https://www.fhwa.dot.gov/planning/scenario_and_visualization/scenario_planning. DOT has incorporated climate change scenarios,
sustainability, and resilience into best practices documents DOT
shares with the States and MPOs. Examples include the Cape Cod and
the New Mexico climate scenario planning projects case studies that
are available at: www.volpe.dot.gov/interagencypilotproject.html and
www.volpe.dot.gov/nmscenarioplanning.
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Scenario planning is an analytical framework that evaluates the
effects of alternative policies, plans and/or programs on the future of
a community or region. Scenario planning informs decision makers and
the public on the potential implications of various transportation
system investments and performance. Scenario planning may consider
potential regional investment strategies, distribution of population
and employment, land use, future climate scenarios, system performance
measures including locally developed measures, and the relationship
between investments and local priorities. A defining characteristic of
successful scenario planning is that it actively involves the public,
the business community, and elected officials on a broad scale,
educating them about, and incorporating their values and feedback into
future plans.
The FHWA's and FTA's proposal encourages MPOs to use scenario
planning during development of the transportation plan. If used, it
should include an analysis of how the preferred scenario maintains or
improves transportation system condition and performance. Use of
scenario planning can improve the effectiveness of a performance
management approach because it allows decisionmakers to understand
alternative approaches to achieving their performance targets and
optimize the use of limited transportation funds.
D. Programmatic Mitigation
In addition to revising the planning statutes, MAP-21 provides an
array of provisions designed to increase innovation and improve
efficiency, effectiveness, and accountability in the planning, design,
engineering, construction, and financing of transportation projects.
These provisions continue efforts to expedite project delivery through
better
[[Page 31790]]
coordination between the transportation planning process and the
environmental review process pursuant to the National Environmental
Policy Act.\34\
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\34\ 42 U.S.C. 4321, et seq.
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The MAP-21 creates a new statutory framework for the optional
development of programmatic mitigation plans as part of the planning
process for use during the environmental review process.\35\ Use of
these plans can expedite project development because the plans provide
opportunities for early consideration of environmental resources at a
statewide, regional, or corridor level and identify options for
mitigating impacts to environmental resources. Prior to the passage of
MAP-21, States and MPOs could develop programmatic environmental
mitigation plans as part of the statewide metropolitan transportation
planning processes.\36\ These new provisions would create a regulatory
framework for States' and MPOs' possible development of programmatic
environmental plans, including the scope, contents, and process for
developing these plans. The proposed new Sec. Sec. 450.214 and 450.320
would provide guidance on the use of the programmatic mitigation plan
during the project development and environmental review process, as
described more fully in the section-by-section discussion.
---------------------------------------------------------------------------
\35\ See 23 U.S.C. 169 (MAP-21 Section 1311).
\36\ See23 U.S.C. 134(i)(2)(D) and 135(f)(4); 49 U.S.C.
5303(i)(2)(B) and 5304(f)(4).
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IV. Section-by-Section Discussion
The FHWA and FTA have drafted the section-by-section discussion for
the statewide and nonmetropolitan planning sections and the
metropolitan planning sections so those sections are self-contained
sections. Although this approach may seem repetitive, it will enable
stakeholders to review the sections that are relevant to them while
minimizing references to other sections.
Sections or paragraphs that would be unchanged under this proposal
or where the only changes would be in numbering are not identified in
this discussion. In addition, references to the statewide
transportation improvement program, metropolitan planning
organizations, the Clean Air Act, and others may have been changed to
the appropriate acronym. Minor and nonsubstantive changes in
capitalizations, changing certain numbers from words to numerals,
changes to citation format and order, adding statutory citations to
some Clean Air Act references, updates to renumbered cross-references
to other sections within part 450, updates to statutory references, and
changes from ``USDOT'' to ``DOT'' have also been made throughout the
proposed regulations without further discussion. In addition, some
minor, nonsubstantive grammatical changes were made to provide clarity,
including several changes throughout the regulatory text from the
passive voice to the active voice without changing the meaning. The
docket contains a redline version of the regulatory text showing the
differences between the existing regulatory text for 23 CFR part 450
and the proposed regulatory text.
Subpart A--Transportation Planning and Programming Definitions
Section 450.104 Definitions
Existing Sec. 450.104 would be retained, with proposed changes to
terms and definitions, as follows.
``Alternatives analysis'' would be removed consistent with MAP-21
changes to FTA's Fixed Guideway Capital Investment Grant Program (49
U.S.C. 5309), which eliminated the requirement to undertake an
alternatives analysis.
``Amendment'' would be updated to more accurately reflect the
relationship of the Clean Air Act's transportation conformity
requirements to the planning process, specifically, to clarify that a
conformity determination is not a criterion for determining the need
for an amendment in nonattainment and maintenance areas. In addition,
the phrase ``changing the number of stations in the case of fixed
guideway transit projects'' would be added to the list of examples of
major changes in design concept or design scope.
``Asset management'' would be a new definition that would be
identical to the definition in MAP-21 Section 1103 (23 U.S.C.
101(a)(2)).
``Committed funds'' would be updated to reflect changes to FTA
terminology resulting from MAP-21 Section 20008 (49 U.S.C. 5309(h)(7)).
Specifically, ``Project Grant Agreement'' would become ``Expedited
Grant Agreement.''
``Conformity'' would be changed to add ``subpart A'' after the
reference to ``40 CFR part 93'' to be more specific regarding the
citation for the transportation conformity regulations. In addition,
``transportation conformity rule'' would be changed to ``transportation
conformity regulations'' for clarity. Both of these changes are made
throughout the proposed regulatory text where appropriate; please see
the redline version of the regulatory text included in the docket for
all instances. The phrase ``or any required interim emission reductions
or other milestones in any area'' is added to the end of the second
sentence of the definition to conform with the language in section
176(c)(1)(A)(iii) of the Clean Air Act, as amended (42 U.S.C. 7401 et
seq.).
``Congestion management process'' would be changed to add the
phrase ``travel demand reduction and'' as part of the definition to
make it consistent with the long-standing statutory definition in 23
U.S.C. 134(k)(3)(A).
``Consideration'' would be updated to include the word
``consequences'' as an item to take into account.
``Designated recipient'' would be updated to conform to the
statutory definition, now in 49 U.S.C. 5302(4)(B)--``State regional
authority'' would be changed to ``State or regional authority.''
Changes resulting from MAP-21 would include: deleting reference to 49
U.S.C. 5306, changing ``chief executive officer'' to Governor, and
replacing ``transportation management areas (TMAs) identified under 49
U.S.C. 5303'' with ``urbanized areas of 200,000 or more in
population.'' See 49 U.S.C. 5302(4)(A).
``Environmental mitigation activities'' would be updated to provide
a more readable, streamlined definition for environmental mitigation
activities without changing the substance of the definition. The
proposed definition would remove reference to ``activities'' in the
list of activities because it is duplicative. It would remove the
phrase ``compensate for (by replacing or providing substitute
resources)'' and replace it with ``rectify, reduce, or eliminate''
because any compensation would typically occur in project development,
not in planning. It would remove the phrase ``or disruption of
elements'' of the plan because it is unnecessary. It changes ``human
and natural environment'' to ``environmental resources'' because it is
more specific to state that environmental mitigation would address
avoiding or minimizing potential impacts to specific environmental
impacts during planning. It also would remove the last two sentences of
the definition, which further expound on the definition of human and
natural environment, and describe the regional nature of environmental
mitigation activities. These sentences were removed because FHWA and
FTA did not want States and MPOs to limit mitigation under
consideration to only the listed examples as there might be other areas
where mitigation could be considered.
``Expedited Grant Agreement (EGA)'' would be a new definition added
to
[[Page 31791]]
reflect a new term used in MAP-21. An EGA means a contract that defines
the scope, the Federal financial contribution, and other terms and
conditions of a Small Starts project, in accordance with 49 U.S.C.
5309(h)(7).
``Freight shippers'' would be revised to broaden the definition to
include any entity that routinely transports cargo from one location to
another by providers of freight transportation services or by their own
operations, involving one or more travel modes. The FHWA and FTA
believe the existing definition is too narrow because it is limited to
``any business that routinely transports its products from one location
to another.'' The proposed revised definition for ``freight shippers''
would be expanded to mean ``any entity that routinely transports cargo
from one location to another.'' The term ``entity'' would be used in
the revised definition to mean any entity that is shipping cargo, and
it would replace the term ``business,'' which was used in the old
definition, because it is too limited. The term ``products'' as used in
the existing definition would be changed to ``cargo'' because
``products'' is limited to ``products'' resulting from ``business''
while ``cargo'' more widely considers movement of other goods in
addition to ``products.'' ``Vehicle fleet'' would be changed to
``involving one or more travel modes'' to reflect the fact that that
there may be more than one travel mode involved in shipping freight
(e.g., freight movement between trucks and rail at an intermodal
facility).
``Highway Safety Improvement Program'' (HSIP) would be a new
definition. As discussed in the major revisions discussion above, MAP-
21's shift to performance-based approach to transportation planning
includes several elements. One of those elements is the requirement to
integrate the goals, objectives, performance measures, and targets from
other performance-based plans and processes into the statewide and
metropolitan transportation planning processes. The HSIP would be one
of those processes. The new definition would be taken from the proposed
23 CFR 924.3. See the updates to the HSIP regulations [RIN 2125-AF56].
``Illustrative project'' would be revised to remove a reference to
``(but is not required to)'' after the word ``may'' because it is
redundant.
``Local official'' would be added as a new definition because of
the new emphasis under MAP-21 on nonmetropolitan transportation
planning. In particular, MAP-21 requires States to work more closely
with nonmetropolitan local officials. A local official would be defined
as an elected or appointed official of general-purpose local government
with responsibility for transportation.
``Major modes of transportation'' is a proposed new definition. The
FHWA and FTA propose to add this definition to help clarify the use of
the term ``major modes of transportation'' as it relates to the changes
in structure to each MPO that serves a TMA. Although each MPO that
serves a TMA will continue to consist of officials, including
``officials of public agencies that administer or operate major modes
of transportation in the metropolitan area,'' MAP-21 adds to the end of
this phrase ``representation by providers of public transportation.''
Major modes of transportation would mean those forms of transportation
administered, managed, owned, or operated by public agencies or
authorities that provide services to the public for the movement of
people and goods, or as operated by the private sector on behalf of a
public, agency-owned facility.
``Metropolitan Planning Agreement'' is a proposed new definition
that would mean a written agreement between the MPO, the State(s), and
the providers of public transportation serving the metropolitan
planning area that describes how they will work cooperatively to meet
their mutual responsibilities in carrying out the metropolitan
transportation planning process, including performance-based planning.
Even though Metropolitan Planning Agreements are currently provided for
in Sec. 450.314, FHWA and FTA propose this definition because this
agreement plays an important role in transitioning to a performance-
driven, outcome-based program by helping to identify how MPOs, States,
and providers of public transportation would cooperatively implement
performance-based planning.
``Non-metropolitan local officials'' would be revised to change
``non-metropolitan'' to ``nonmetropolitan.'' This change would be made
throughout the proposed regulatory text; to see all the instances
please refer to the redline in the docket as referenced above.
``Obligated projects'' would be updated to clarify that funds may
have been obligated in the preceding program year or the current year.
``Performance measures,'' ``performance metrics,'' and
``performance targets'' would be new definitions added as a result of
the new performance-based planning provisions in MAP-21, including
sections 1203, 20019, and 20021 (23 U.S.C. 150 and 49 U.S.C. 5326 and
5329). These definitions would refer to the definitions developed for
these terms during the rulemakings to implement the referenced MAP-21
provisions. See Federal-aid Highway Performance Measure Rules [RIN
2125-AF49, 2125-AF53, 2125-AF54], Transit Asset Management Rule [RIN
2132-AB07], and National and Public Transportation Safety Plans Rule
[RIN 2132-AB20].
``Project construction grant agreement'' would be deleted because
MAP-21 renamed it ``Expedited Grant Agreement'' (which is included as a
new definition), in accordance with 49 U.S.C. 5309(h)(7).
``Provider of freight transportation services'' would be modified
so that ``goods'' is changed to ``cargo'' to be consistent with the
definition of ``freight shippers.''
``Public transportation agency safety plan'' is a proposed new
definition and would mean a comprehensive plan established by a State
or recipient of funds under Title 49, chapter 53. This definition
reflects MAP-21's new requirement that the statewide and
nonmetropolitan transportation planning process integrate the goals,
objectives, performance measures, and targets from other performance-
based plans. The public transportation agency safety plan would be one
of those plans.
``Public transportation operator'' would be modified to provide
clarification. The phrase ``public entity'' in the existing definition
would be changed to ``public entity or government-approved authority.''
This would reflect that the public transportation operator may be: (1)
A public entity, or (2) a governmental-approved authority that is not a
public entity. Also, the definition is modified so that the list of
entities that are not considered to be ``public transportation
operators'' would be expanded to include a conveyance that provides
``sightseeing'' or ``certain types of shuttle service.''
``Regional Transportation Planning Organization (RTPO)'' would be a
new definition resulting from MAP-21's emphasis on nonmetropolitan
transportation planning and the creation of a new optional statutory
framework for these organizations. The definition would be taken
directly from 23 U.S.C. 135(m)(1) and (2) and would mean a policy board
of nonmetropolitan local officials or their designees created to carry
out the regional transportation planning process.
``Regionally significant project'' would be modified by removing
the word ``significant'' from the last sentence of the definition. This
change would eliminate an unintended redundancy in the existing
regulation,
[[Page 31792]]
as all fixed guideway transit facilities that offer an alternative to
regional highway travel are regionally significant projects. The
proposed change would not change the meaning of the term ``Regionally
significant project.''
``Scenario planning'' would be a new definition added to reflect
MAP-21's codification of an existing best practice in the metropolitan
transportation planning process. Scenario planning would mean a
planning process that evaluates the effects of alternative policies,
plans and/or programs on the future of a community or region. The MPOs
may use scenario planning as they develop the transportation plan. The
FHWA and FTA have based this definition on language in 23 U.S.C.
134(i)(4)(A)-(C).
``Strategic Highway Safety Plan'' would be retained and updated,
consistent with 23 U.S.C. 148, as amended by MAP-21. In addition to
minor administrative changes, FHWA and FTA propose to change ``plan''
to ``comprehensive multidisciplinary plan, based on safety data.''
``Transit Asset Management Plan'' and ``Transit Asset Management
System'' would be proposed new definitions, added as a result of the
new performance-based planning provisions in MAP-21, to integrate
performance elements of other plans (including the new transit asset
management plan) into the transportation planning process. These
definitions would refer to the definitions developed for these terms
during the rulemaking to implement the new MAP-21 transit asset
management provisions (49 U.S.C. 5326). See Transit Asset Management
Rule [RIN 2132-AB07].
``Transportation Contol Measure'' would be changed to add the
phrase ``including a substitute or additional TCM that is incorporated
into the applicable SIP through the process established in CAA section
176(c)(8)'' as part of the definition. This change is being proposed
for better consistency with the 2005 amendments to section 176 of the
Clean Air Act (codified at 42 U.S.C. 7506(c)), enacted in section
6011(d) of the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, 119 Stat.
1144 (2005).
``Visualization techniques'' would be changed to add language to
clarify the types of methods that can be used (``GIS or web-based
surveys, inventories'') as well as the types of facilities and
resources that may be included (``identifying features such as roadway
rights of way, transit, intermodal, and non-motorized transportation
facilities, historic and cultural resources, natural resources, and
environmentally sensitive areas''). This list is illustrative of the
types of items that can be included and is not an exclusive list.
Subpart B--Statewide and Nonmetropolitan Transportation Planning and
Programming
The title of Subpart B would be changed from ``Statewide
Transportation Planning and Programming'' to ``Statewide and
Nonmetropolitan Transportation Planning'' to reflect statutory changes.
The addition of ``Nonmetropolitan'' to the title epitomizes MAP-21's
new emphasis on the importance of nonmetropolitan transportation
planning.
Section 450.200 Purpose
The statement of purpose in Sec. 450.200 would be revised to make
two changes to reflect the MAP-21 shift to a performance-based approach
to statewide transportation planning. The two changes include adding
reference to the new 23 U.S.C. 150 (the new Federal-aid highway program
provision requiring the Secretary to establish performance measures and
standards) and adding ``performance-based'' before the reference to the
multimodal transportation planning process.
Section 450.202 Applicability
Existing Sec. 450.202 would be modified to add RTPOs as one of the
entities responsible for satisfying the statewide transportation
planning provisions. One of MAP-21's major changes is the codification
of a framework States may use to establish and designate RTPOs.
Section 450.206 Scope of the Statewide Transportation and
Nonmetropolitan Planning Process
Section 450.206 describes the scope of the statewide and
nonmetropolitan transportation planning process. The FHWA and FTA
propose to revise this section to incorporate MAP-21's critical changes
to the planning process requiring States, MPOs, and providers of public
transportation to link investment priorities (the transportation
improvement program of projects) to achieving performance targets that
will be established to reflect performance measures in key areas.
Several key elements of a performance management approach would be
included in the proposed revisions to this regulation (see paragraph
(c)): establishment of performance targets, coordination of performance
targets, integration of elements of other performance-based plans, and
consideration in the development of investment priorities. One other
significant change is the inclusion of the word ``nonmetropolitan'' in
the proposed heading reflecting the increased emphasis on
nonmetropolitan transportation planning. These major proposed changes,
as well as other minor proposed changes, are further described below.
The heading of existing Sec. 450.206 would be changed to add ``and
Nonmetropolitan'' to be consistent with MAP-21 section 1202's change to
the heading of 23 U.S.C. 135.
Section 450.206(b) would be revised to add ``(including Section
4(f) properties as defined in 23 CFR 774.17)'' after ``human and
natural environment'' to clarify that Section 4(f) properties should be
included in considerations of human and natural environment for
purposes of this section. This change also reflects the 2008 revision
to the joint FHWA and FTA Section 4(f) regulations, which are now
contained in 23 CFR 774 and include a definition for ``Section 4(f)
Property''.
The proposed new Sec. 450.206(c) would describe the new
performance-based approach to transportation planning and programming
under MAP-21 and set up the foundation for such an approach. As a
fundamental principle, proposed new paragraph (c)(1) would require
States to use a performance-based approach to transportation
decisionmaking to support national goals and purposes.
Proposed new paragraph (c)(2) starts building the foundational
steps to this performance-based approach by requiring States to
establish performance targets for the Federal-aid highway program based
on measures that FHWA will develop in separate rulemakings (Federal-aid
Highway Performance Measure Rules [RIN 2125-AF49, 2125-AF53, 2125-
AF54]). These separate rulemakings will contain detailed requirements
for establishing targets. As part of the planning process, States would
be required when selecting and establishing performance targets in
proposed paragraph (c)(2), to coordinate those targets to ensure
consistency, to the maximum extent practicable, with the MPOs. In
addition, States would also coordinate the establishment of performance
targets with affected Federal Lands Management Agencies. See 23 U.S.C.
135(d)(2).
Proposed new paragraph (c)(3) relates to public transportation
performance targets and would require States to coordinate the
selection of public transportation targets with providers of public
transportation. These targets will be based on measures and standards
that will be developed by FTA in
[[Page 31793]]
separate rulemakings (Transit Asset Management Rule [RIN 2132-AB07],
and National and Public Transportation Safety Plans Rule [RIN 2132-
AB20]). Paragraph (c)(3) provides that in areas not represented by
MPOs, States would be required to coordinate the selection of these
public transportation performance targets to the maximum extent
practicable with providers of public transportation, to ensure
consistency. See 49 U.S.C. 5304(d)(2).
In paragraphs (c)(3) and (c)(4), the language in section 23 U.S.C.
135(d)(2)(B)(ii) and 49 U.S.C. 5304(d)(2)(B)(ii) that refers to
``providers of public transportation'' in ``urbanized areas . . . not
represented by a metropolitan planning organization'' would not be
carried forward because by statute, all ``urbanized areas'' continue to
be represented by an MPO (23 U.S.C. 134(d)(1) and 49 U.S.C.
5303(d)(1)). Because of this discrepancy, FHWA and FTA propose the
following interpretation. Instead of using ``urbanized areas,'' FHWA
and FTA would instead use the phrase ``areas not represented by a
metropolitan planning organization'' because States would need to
coordinate with providers of public transportation in these areas not
represented by a MPO to select performance targets with respect to 49
U.S.C. 5326(c) and 49 U.S.C. 5329(d).
Proposed paragraph (c)(4) continues to build the foundational steps
by requiring States to integrate into the statewide transportation
planning process the elements (goals, objectives, performance measures,
and targets) in other State transportation plans and transportation
processes, as well as any plans developed by providers of
transportation in areas not represented by an MPO. Examples of other
performance-based plans and processes include the HSIP, the SHSP, the
NHS Asset Management Plan, the State Freight Plan (if the State chooses
to develop one), the transit asset management plan, and the public
transportation agency safety plan.
The FHWA and FTA propose a new paragraph (c)(5) that is a critical
piece of the foundation for a performance-based management approach.
This paragraph would require States to consider the performance
measures and its performance targets when developing its planning
documents and making investment priorities. This would ensure that
these decisions are transparent. See 23 U.S.C. 135(d)(2)(D) and 49
U.S.C. 5303(d)(2)(D).
Existing Sec. 450.206(c) would become Sec. 450.206(d) and be
revised to include that the performance-based planning aspects of the
statewide transportation planning process, as described above in
proposed new paragraph (c), are not subject to review by any court. In
addition, ``reviewable'' is changed to ``subject to review.'' These
changes are consistent with the MAP-21 changes to 23 U.S.C. 135(d)(3)
and 49 U.S.C. 5304(d)(3).
Existing Sec. 450.206(d) would become 450.206(e) and the second
sentence would be revised. The reference to 23 U.S.C. 104(b)(1) and (3)
and 105 becomes 23 U.S.C. 104(b)(2) because MAP-21 section 1105 changed
references to the 23 U.S.C. 104 apportioned programs, and MAP-21
section 1519(b) repealed 23 U.S.C. 105. Now, the Surface Transportation
Program apportionment is under 23 U.S.C. 104(b)(2). Transportation
planning, previously an eligible activity under the NHS program funds
in SAFETEA-LU, is no longer eligible for the National Highway
Performance Program (NHPP), which replaced the NHS program. References
to 49 U.S.C. 5310 and 5311 would be added to clarify existing
authorities. In addition, ``for statewide transportation planning''
would be added to the end of the second sentence to clarify eligibility
of statewide planning for these funds.
Section 450.208 Coordination of Planning Process Activities
Section 450.208 generally describes how States must work with other
agencies when conducting the statewide and nonmetropolitan
transportation planning process. The revisions to this section propose
changes in two areas. First, there is a change to reflect the new
emphasis under MAP-21 on nonmetropolitan transportation planning.
Second, there are changes to reflect an aspect of the new performance-
based approach--the integration of elements of other performance-based
plans into the planning process. These proposed changes, as well as
other minor proposed changes, are further described below.
Consistent with MAP-21's new emphasis on nonmetropolitan
transportation planning, this section proposes two changes. First,
existing Sec. 450.208(a)(4) would be revised to note the change in
language from ``consider the concerns'' to ``cooperate with affected''
in accordance with changes to 23 U.S.C. 135(e)(1) and 49 U.S.C.
5303(e)(1). Second, this proposed section would now include RTPOs as an
entity States would cooperate with, if they choose to designate and
establish RTPOs.
The MAP-21 now requires the integration of other performance-based
plans into the statewide transportation planning process under 23
U.S.C. 135(d)(2) and 49 U.S.C. 5304(d)(2). Current regulations
encourage consideration of asset management principles during the
planning process. With the new MAP-21 requirements to develop and
implement asset management plans (See Federal-aid Highway Risk-Based
Asset Management Plan Rule for the NHS [RIN 2125-AF57], Transit Asset
Management Rule [RIN 2132-AB07], and National and Public Transportation
Safety Plans Rule [RIN 2132-AB20]), it is even more important for
States to consider these plans during the transportation planning
process. The FHWA and FTA are proposing revisions to Sec. 450.208(e)
and a new Sec. 450.208(f) to ensure that these asset management
principles and techniques are part of the planning process. In
particular, revised paragraph (e) would now require that States apply
asset management principals and techniques to the statewide
transportation planning process consistent with the Asset Management
Plan for the NHS, the Transit Asset Management Plan, and the Public
Transportation Agency Safety Plan. The new paragraph (f) covers the
non-NHS highways and proposes that States ``may'' apply asset
management principles to the transportation planning and programming
processes.
Proposed new paragraph (g) includes the MAP-21 performance-related
requirement that States integrate goals, objectives, performance
measures, and targets of other performance-based plans into their
statewide transportation planning process. This paragraph identifies
the other performance-based plans processes States would integrate,
including the Asset Management Plan for the NHS, the SHSP, the Public
Transportation Agency Safety Plan, the Transit Asset Management Plan,
the State Freight Plan (if one exists, as it is optional), as
appropriate, and other State transportation plans and processes
required as part of a performance-based program.
Existing Sec. 450.208(g) would become Sec. 450.208(i) and is
revised to delete references to 49 U.S.C. 5316 and 5317 because MAP-21
repealed these sections. This change was made throughout this proposed
regulation; please see the redline version of the regulatory text
included in the docket for further information.
Existing Sec. 450.208(h) would be deleted and the reference to the
SHSP would be moved to Sec. 450.208(g)(2). The reference to SHSP would
be moved because of the new MAP-21 requirements for States to integrate
the
[[Page 31794]]
elements of other performance-based plans and processes (including the
SHSP) into the statewide transportation planning process.
Section 450.210 Interested Parties, Public Involvement, and
Consultation
Section 450.210 requires States to involve members of the public
and nonmetropolitan local officials in the planning process that
produces the long-range statewide transportation plan and STIP. The
proposed Sec. 450.210 would retain the existing process for public
involvement and would, along with minor changes: (1) Require States to
cooperate, rather than consult, with nonmetropolitan local officials in
development of the long-range statewide transportation plan and STIP,
and (2) add a new process for States that elect to establish and
designate RTPOs to perform planning in nonmetropolitan areas. These
proposed changes reflect MAP-21's theme of increased cooperation
between States and nonmetropolitan areas in transportation planning.
These changes, and other minor changes, are described below.
Existing Sec. 450.210(a)(1)(i) would be revised so that the word
``citizens'' would be replaced with the word ``individuals'' to avoid
confusion of the term ``citizens'' with U.S. citizenship. In proposed
paragraph (a)(1)(iii), the words ``but not limited to'' following
``including'' would be removed because they are unnecessary; use of
``including'' or ``include'' generally precedes a nonexclusive list.
Both of these changes would be made throughout the proposed regulatory
text; to see all the instances please refer to the redline version of
the regulatory text included in the docket as referenced above.
Examples of affected public agencies to which a State might provide an
opportunity to be involved in the statewide planning process under
Sec. 450.210(a)(1)(i) include agencies with responsibility for
economic development, human and natural resources, environmental
protection, sustainability, mitigation, adaptation, climate, and air
quality.
Section 450.210(b) requires States to provide for nonmetropolitan
local official participation in the development of the long-range
statewide transportation plan and STIP. Paragraph (b) would retain the
current requirement for States to have a documented process for the
participation of nonmetropolitan local officials and to review and
solicit comments on the process at least once every 5 years. The
current regulation requires this participation to be consultative in
nature, which means that States are required to consider the views of
nonmetropolitan local officials. Consistent with MAP-21's amendments,
the proposed regulation would require States to cooperate with
nonmetropolitan local officials, meaning that they would be required to
work together to achieve a common outcome. The proposed change from
consultation to cooperation would require States to work more closely
with nonmetropolitan local officials in the development of the long-
range statewide transportation plan and STIP. Section 450.210(b)(1)
also would be revised to remove the reference to ``(as of February 24,
2006)'' because the requirement has existed for long enough that that
date is no longer meaningful.
Proposed Sec. 450.210(c), which concerns areas of States under the
jurisdiction of an Indian tribal government, would replace ``Federal
land management agencies'' with the ``Department of the Interior'' as
the entity with which States must consult when forming the long-range
statewide transportation plan and STIP for such area. This change would
be made because the Department of the Interior, not the Federal land
management agencies, is the Federal agency with responsibility for
managing Indian tribal matters. Paragraph (c) would also be revised to
insert the word ``the'' in the phrase ``Secretary of the Interior'' to
correct that official's title.
Proposed Sec. 450.210(d) would be added to provide a process to
establish and designate an RTPO and describe the structure and primary
functions of an RTPO. To support States' cooperation with
nonmetropolitan areas, MAP-21 introduces an optional formal process for
States to establish and designate RTPOs to carry out the transportation
planning process in nonmetropolitan areas. If established, a State
would cooperate with nonmetropolitan local officials through the RTPO.
The establishment and designation of an RTPO is optional; if a State
chooses not to establish RTPOs under the proposed rule, the State
itself would carry out all elements of the statewide and
nonmetropolitan planning process, as is currently required, and would
cooperate directly with affected nonmetropolitan local officials.
The MAP-21 provides that ``States'' have the authority to establish
and designate an RTPO. Proposed paragraph (d) would clarify that this
authority resides in the Governor or the Governor's designee. This
clarification is proposed because the Governor is the chief executive
of a State. Proposed paragraph (d) would require existing regional
planning organizations to go through the formal establishment and
designation process required by this proposed section to become an
RTPO. This is proposed because RTPOs have a certain structure and
statutorily specified duties, as described below, and MAP-21 requires
States to cooperate with RTPOs when they are present.
The proposed paragraphs (d)(1) and (d)(2), which closely track
statutory language, would describe the structure of an RTPO. Because an
RTPO would conduct planning for a nonmetropolitan region, an RTPO would
be a multijurisdictional organization composed of volunteer
nonmetropolitan local officials or their designees, and volunteer
representatives of local transportation systems. An RTPO also would be
required to establish a policy committee and a fiscal and
administrative agent to provide professional planning, management, and
administrative support. The policy committee would be composed mostly
of nonmetropolitan local officials, with additional representatives, as
appropriate, from the State, private business, transportation service
providers, economic development practitioners, and the public in the
region.
Proposed paragraph (d)(3), which also closely tracks statutory
language, would describe the duties of an RTPO. The duties of an RTPO
would include developing a regional long-range multimodal
transportation plan and a regional TIP, providing a forum for public
participation in the statewide and regional transportation planning
process, and conducting other activities to support and enhance the
statewide planning process. By conducting nonmetropolitan planning as
local organizations, RTPOs would enhance the planning, coordination,
and implementation of the long-range statewide transportation plans and
STIPs, with an emphasis on addressing the needs of the nonmetropolitan
areas of the State. Nothing in paragraph (d) would prevent an RTPO from
conducting other transportation planning activities in addition to
those required under this paragraph.
Section 450.212 Transportation Planning Studies and Project Development
Current Sec. 450.212 and Appendix A provide the context and the
means for using transportation planning information and decisions in
the environmental review process. Those provisions reflect long-
standing practice for highway and transit projects pursuant to various
sections of the Council on Environmental Quality
[[Page 31795]]
regulations that implement NEPA at 40 CFR parts 1500-1508 and case
law.\37\ The practice of using information and decisions developed
during transportation planning provides opportunities for expediting
project delivery, generating cost savings by reducing duplication of
effort, and improving environmental outcomes through the planning of
projects in an environmentally sensitive manner. The MAP-21 section
1310 broadens this practice by creating 23 U.S.C. 168, which provides
additional statutory authority for linking planning and the
environmental review process. The FHWA and FTA propose to retain Sec.
450.212 without revision. The agencies will address implementation of
section 1310 and any needed updates to provisions on pre-MAP-
21integration authorities through separate rulemaking or guidance.
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\37\ See Carmel-by-the-Sea v. U.S. DOT, 123 F.3d 1142 (9th Cir.
1997) (finding that the EIS appropriately relied on growth plans
developed during the planning process for the EIS discussion of the
project's growth inducing effects); North Buckhead Civic Association
v. Skinner, 903 F.2d 1533 (11th Cir. 1990) (validating the use of a
purpose and need statement under NEPA that was developed through the
transportation planning process); Sierra Club v. U.S. DOT, 310 F.
Supp. 2d 1168 (D. Nevada 2004) (finding that reliance during the
NEPA process on forecasts and modeling efforts developed in the
planning process was reasonable).
---------------------------------------------------------------------------
The current Appendix A of 23 CFR part 450, referenced in existing
Sec. 450.212, provides detailed information on how to evaluate whether
material, information, decisions, or analyses developed during the
transportation planning process could be used during the environmental
review process of a project (i.e., project development). The FHWA and
FTA derived the concepts in Appendix A from NEPA regulations, guidance,
and case law. The Agencies propose to retain Appendix A.
Section 450.214 Development of Programmatic Mitigation Plans
Proposed Sec. 450.214 is new and implements a new statutory
provision at 23 U.S.C. 169, created by MAP-21 Section 1311, that
provides a statutory framework for the optional development of
programmatic mitigation plans as part of the planning process for use
during the subsequent environmental review process. See 23 U.S.C.
168(c)(1)(E). This new proposed regulatory section is intended to
clarify the possible scope, scale, and contents of programmatic
mitigation plans developed pursuant to 23 U.S.C. 169 as well as the
process used to develop them, and subsequently use them, in the
environmental review process. For FHWA and FTA, programmatic mitigation
plans are plans that address the potential environmental impacts of
future transportation projects.
A State can develop a programmatic mitigation plan at the
statewide, regional, local jurisdiction, ecosystem, watershed or
similar scale, and can normally develop a plan with an aim toward
protecting, preserving, rehabilitating, or creating environmental
resources, or mitigating possible harm to environmental resources due
to future transportation projects. Examples of resources that the plan
might identify include wetlands, streams, rivers, stormwater,
parklands, cultural resources, historic resources, farmlands, and
threatened and endangered species. The plan may inventory existing or
planned wetland, stream, habitat, species, and/or other environmental
resource mitigation sites or areas, and resource areas of high value or
concern, as well as adopt or develop standard measures or operating
procedures for mitigating certain types of impacts. The plan may
include development of mitigation or conservation banks, in-lieu-fee
programs, or consolidated mitigation areas. The plan may be used to
develop mitigation strategies based on an analysis of greenhouse gas
emissions and vulnerability to climate change impacts, or an energy
analysis. In developing a programmatic mitigation plan as part of the
statewide transportation planning process (or the metropolitan
transportation planning process under Sec. 450.320 below), a State (or
MPO) would need to consult with each agency with jurisdiction over the
environmental resources considered in the plan. The consultation may
address considerations such as the applicability of the plan to meet
multiple regulatory requirements and identification of steps necessary
for implementation of the plan. The State (or MPO), must make the plan
available for review and comment by the public and the applicable
environmental resource agencies. A programmatic approach to
environmental mitigation has the potential to streamline the project
development process and improve environmental outcomes through early
identification of potential environmental impacts and identification of
potential avoidance or mitigation opportunities. The degree to which
programmatic mitigation strategies are useful later in the project
development process depends on the extent of consultation, as well as
the level of detail that is developed during planning with the agency
of jurisdiction over a particular resource that will later consider
that mitigation for purposes of satisfying permit requirements. Thus,
FHWA and FTA suggest that such consultation take place during planning,
and agreement reached as much as feasible to maximize the extent to
which programmatic mitigation can be used. The FHWA and FTA strongly
encourage flexibility within the constraints of existing regulations
with respect to permitting in support of better environmental outcomes.
Section 450.216 Development and Content of the Long-Range Statewide
Transportation Plan
Existing Sec. 450.214 would become Sec. 450.216. It would be
revised to codify in regulation MAP-21's provision that each State
should implement a performance-based approach in the development of its
long-range statewide transportation plan. The statewide transportation
plan is a multimodal transportation plan addressing at least a 20-year
planning horizon for all areas of the State. As part of the proposed
performance-based changes to this section, each State should describe
in its long-range statewide transportation plan the performance
measures and performance targets it used to assess the performance of
its transportation system. The State's long-range plan should include a
system performance report that contains the State's evaluation of the
condition and performance of the transportation system with respect to
performance targets established by the State to address the performance
measures identified under 23 U.S.C. 150(c), and 49 U.S.C. 5326(c) and
49 U.S.C. 5329(d). The State should also report on the progress
achieved by the MPOs in meeting their performance targets in comparison
with the system performance recorded in previous reports. See 23 U.S.C.
135(f)(7) and 49 U.S.C. 5304(f)(7). This section adds the new emphasis
on nonmetropolitan planning and requires a State to provide
nonmetropolitan local officials or RTPOs the opportunity to participate
in the development and update of the plan. Finally, the section also
encourages the State to assess the appropriateness of innovative
finance techniques in its development of financing strategies as part
of the financial plan component of the long-range statewide
transportation plan. It also encourages a State, when assessing its
capital investments as part of the long-range statewide transportation
plan, to consider the financial plans and investment strategies from
the State Asset Management Plan for the NHS, as defined in 23 U.S.C.
119(e), and the investment priorities of the public
[[Page 31796]]
transit asset management plan, as discussed in 49 U.S.C. 5326. This
will help ensure that key elements of the asset management plans are
considered as part of the investment decisionmaking process.
Consistent with existing Sec. 450.214, proposed Sec. 450.216
would maintain the opportunity for the long-range statewide
transportation plan to be comprised of policies and/or strategies, not
necessarily specific projects, over the minimum 20-year forecast
period. In addition, it would retain State discretion to identify a
periodic schedule for updating the long-range statewide transportation
plan and to revise the plan as necessary.
Existing Sec. 450.214(c) would become proposed Sec. 450.216(c)
and be revised to add ``as appropriate'' after the list of items that
the plan shall reference, summarize, or contain because some items
might not be relevant. Examples of plans that the plan might reference
include energy plans, or plans that address resilience to current and
future conditions. Such conditions could include severe weather events
and changes in weather patterns.
Existing Sec. 450.214(d) would become proposed Sec. 450.216(d)
and be revised to reflect that States should integrate into the
statewide transportation plan the priorities, goals, countermeasures,
strategies, or projects contained in the HSIP, including the SHSP, as
required under 23 U.S.C. 148, and the Public Transportation Agency
Safety Plan required under 49 U.S.C. 5329, or an Interim Agency Safety
Plan in accordance with 49 CFR part 659, as in effect until completion
of the Public Transportation Agency Safety Plan.
Proposed Sec. 450.216(f) would be added to reflect a key provision
added by MAP-21 to 23 U.S.C. 135(f)(7) and 49 U.S.C. 5304(f)(7)
regarding a performance driven, outcome-based statewide transportation
planning process and closely follows the statutory text. Specifically,
proposed paragraph (f) states that the statewide transportation plan
should be performance-based and should include a description of the
performance measures and targets used in assessing the performance of
the transportation system. The statewide plan should also include a
system performance report and subsequent updates evaluating the
performance of the transportation system with respect to the
performance targets, including progress achieved by the MPO(s) in
meeting the performance targets in comparison with system performance
recorded in previous reports.
Consistent with MAP-21's emphasis on nonmetropolitan planning
discussed above, and requirements for States to work more closely with
nonmetropolitan local officials and, if applicable, RTPOs, existing
Sec. 450.214(g) would become proposed Sec. 450.216(h),
``consultation'' with ``non-metropolitan'' officials would become
``cooperation'' with ``nonmetropolitan'' officials, and provision for
cooperation with RTPOs, if applicable, would be added. See 23 U.S.C.
135(f)(2)(B) and 49 U.S.C. 5304(f)(2)(B). State DOTs would retain final
decisionmaking authority for development of the long range statewide
transportation plan and the statewide transportation improvement
program.
Existing Sec. 450.214(j) would become proposed Sec. 450.216(k)
and be revised to add regional and local entities to the list of
entities States must consult when developing the discussion on
potential environmental mitigation strategies or the long-range
statewide transportation plan.
Existing Sec. 450.214(k) would become proposed Sec. 450.216(l)
and be updated. Consistent with MAP-21's new emphasis on
nonmetropolitan transportation planning, this section proposes that the
State provide nonmetropolitan local elected officials, or the RTPOs if
applicable, the opportunity to participate in the development and
update of the long-range statewide transportation plan. This change
results from changes in MAP-21 section 1202 to 23 U.S.C. 135(f)(2)(B)
and 49 U.S.C. 5304(f)(2)(B). In addition, proposed paragraph (l)(2)
would remove the reference to ``to the maximum extent practicable'' to
be consistent with the statutory text (23 U.S.C. 135(f)(3) and 49
U.S.C. 5304(f)(3)). Where applicable, ``to the maximum extent
practicable'' is included in the appropriate provisions in the
referenced Sec. 450.210(a).
Existing Sec. 450.214(l) would become proposed Sec. 450.216(m)
and be updated to remove two references to ``(but is not required to)''
after the word ``may'' because it is redundant. A statement would also
be added to this section: ``[t]he financial plan may include an
assessment of the appropriateness of innovative finance techniques (for
example, tolling, pricing, bonding, public private partnerships, or
other strategies) as revenue sources.'' This provision would support 23
U.S.C. 106(h)(3)(D), which encourages earlier consideration of
innovative finance techniques. Although 23 U.S.C. 106(h)(3)(D) refers
to consideration as part of the finance plan for a project, it is also
appropriate to consider innovative finance techniques as part of the
finance plan for the statewide plan.
New Sec. 450.216(n) is proposed to provide that as the State
develops the financial strategies for its long-range statewide
transportation plan and assesses its capital investment, it should
consider the financial plan and investment strategies from the newly
required State asset management plan for the NHS as defined in 23
U.S.C. 119(e) and investment priorities of the newly required public
transit asset management plan(s) as discussed in 49 U.S.C. 5326.
Information from these newly required plans can inform States in their
capital investment decisionmaking process.
Existing Sec. 450.214(g) would become Sec. 450.216(p) and would
be revised to add ``for public review'' to clarify that the long-range
statewide transportation plan shall be made available for public
review, including electronically. This is consistent with a long-
standing statutory requirement in 23 U.S.C. 135(f)(3) and 49 U.S.C.
5304(f)(3).
Section 450.218 Development and Content of the Statewide Transportation
Improvement Program (STIP)
Existing Sec. 450.216 would become proposed Sec. 450.218. Section
450.218 describes the development and the content of the STIP. The STIP
is the prioritized listing of transportation projects covering a period
of 4 years that the State develops in cooperation with the MPOs,
nonmetropolitan local officials, and, if applicable, RTPOs. The FHWA
and FTA approve the STIP. This section would be revised to incorporate
MAP-21's new requirements for a performance-based planning and
programming process and increased emphasis on nonmetropolitan
transportation planning. A significant revision to this section would
be the addition of the new performance-based requirement that the STIP
would include a description of how the investment priorities in the
STIP contribute toward the achievement of the performance targets in
the statewide transportation plan. Because the STIP is developed with
opportunity for public comment, the new requirement to demonstrate how
investment decisions are made adds additional accountability and
transparency to the planning process. The establishment of performance
targets would also align the STIP in those key areas where targets are
established, including safety, state of good repair, congestion and
reliability, freight, and emissions. A description of the performance-
based changes to this section and other minor proposed changes to this
section are as follows.
[[Page 31797]]
Existing Sec. 450.216(a) would become Sec. 450.218(a) and be
updated to add ``shall'' after ``4 years and'' and include the phrase
``of the State'' after the word ``Governor'' to provide clarification.
Section 450.216(c) would become Sec. 450.218(c) and be updated to
reflect the new emphasis on nonmetropolitan transportation planning.
Specifically, the proposed regulation would change ``consultation''
with ``non-metropolitan'' officials to ``cooperation'' with
``nonmetropolitan'' officials and would add cooperation with RTPOs, if
applicable. These changes reflect MAP-21 revisions to 49 U.S.C.
5304(g)(2)(B)(i). Whereas 49 U.S.C. 5304 is nearly the same as 23
U.S.C. 135, this is one instance where changes to the two statutes were
inconsistent. The MAP-21 revision to section 135(g)(2)(B)(i) does not
change ``consultation'' to ``cooperation.'' In updating these joint
regulations, FHWA and FTA determined that it was appropriate to use
``cooperation,'' rather than ``consultation'' in this paragraph of
these joint regulations. To have two different processes--a
consultation process for Title 23 actions and a cooperation process for
Title 49 actions--is overly burdensome. Using ``cooperation'' is
consistent with the comparable changes MAP-21 made to the long-range
statewide transportation plan provisions (see proposed Sec.
450.216(h)). Because of the long-standing requirement that the STIP be
consistent with the long-range statewide transportation plan, the State
should follow a similar coordination process for both of these
documents. In addition, as defined for purposes of part 450,
``cooperation'' requires States to work more closely with
nonmetropolitan local officials and RTPOs, if applicable, than
``consultation.'' This proposed change is also consistent with the
overall MAP-21 approach to increasing the presence of affected
nonmetropolitan local officials and regional planning organizations in
the statewide planning process.
Existing Sec. 450.216(e) and (g) would become proposed Sec.
450.218(e) and (g), and ``Federal Lands Highway Program'' would be
changed to ``Tribal Transportation Program, Federal Lands
Transportation Program, and Federal Lands Access Program'' to reflect
MAP-21 program changes to 23 U.S.C. 201-204.
Section 450.216(g) would become Sec. 450.218(g) and be updated to
reflect MAP-21 changes to programs, phrases, and plans. In particular,
``transportation enhancements'' would become ``transportation
alternatives,'' and ``associated transit improvements'' would be added
under (g). ``Associated transit improvements'' is FTA's equivalent of
FHWA's ``transportation alternatives.'' Reference to SHSP would be
changed to HSIP because HSIP is the program that funds safety projects
(as opposed to a SHSP), and is more closely associated with the STIP.
Under Sec. 450.218(g)(2), 23 U.S.C. 104(f) would become 23 U.S.C.
104(d) and reference to 49 U.S.C. 5339 would be deleted. Paragraph
450.218(g)(4) would be revised to remove references to the ``National
Highway System,'' and ``and/or Equity Bonus'' because these programs
are not continued under MAP-21 and remove reference to ``[a]t the
State's discretion'' as it is repetitive. Because of the creation of
FTA's emergency relief funding program, FHWA and FTA want to clarify
that Sec. 450.218(g)(5), which indicates that emergency relief
projects meeting certain conditions are not required to be included in
the STIP, would not apply to resiliency projects funded under 49 U.S.C.
5324. Section 450.218(g)(6) would be revised and reference to
``national planning and research projects funded under 49 U.S.C. 5314''
would be changed to ``[r]esearch development demonstration and
deployment projects funded under 49 U.S.C. 5312, and technical
assistance and standards development projects funded under 49 U.S.C.
5314.'' This change is proposed because of MAP-21 changes to research
programs that separated the programs into two sections and created a
distinct technical assistance and standards development program.
Section 450.218(g)(8) would be added to reflect that State safety
oversight funds awarded under 49 U.S.C. 5329 are not subject to the
rule of financial constraint, and therefore State safety oversight
programs may, but are not required to, be included in the STIP.
Existing Sec. 450.216(j) would become proposed Sec. 450.218(j)
and be updated to add ``subpart A'' after the second reference to ``40
CFR part 93'' to be more specific regarding the citation for the
transportation conformity.
Section 450.216(l) would become Sec. 450.218(l) and would be
revised to delete ``made'' from the phrase ``reasonably expected to be
made available'' for consistency with other terminology. The phrase
``Starting December 11, 2007'' would be removed because this date has
passed and the use of year of expenditure dollars for revenue and cost
estimates in the STIP continues to be a requirement. Reference to
``(but is not required to)'' after the word ``may'' would be removed
because it is redundant.
Section 450.216(m) would become Sec. 450.218(m) and the following
provision would be moved to its own section at 450.218(p) for added
emphasis: ``The STIP shall include a project, or an identified phase of
a project, only if full funding can reasonably be anticipated to be
available for the project within the time period contemplated for
completion of the project.'' In addition, a more specific statutory
citation to the definition of public transportation (``49 U.S.C.
5302'') would replace the more general reference (``49 U.S.C. Chapter
53'').
Consistent with the new requirements to integrate elements of other
performance-based plans and processes into the statewide transportation
planning process, a new proposed Sec. 450.218(o) would be added to
indicate that the STIP should be informed by the financial plan and the
investment strategies from the State asset management plan for the NHS
and by the public transit asset management plan. See 23 U.S.C. 119(e)
and 49 U.S.C. 5326. The financial plan and investment strategies of the
State asset management plan for the NHS and the investment strategies
of the public transit asset management plan are elements of new
performance-based plans required under MAP-21. The FHWA and FTA propose
in this section that States consider these elements as part of the
investment decisionmaking process to inform the STIP.
The FHWA and FTA propose to incorporate the MAP-21 requirements for
a performance-based STIP in proposed new Sec. 450.218(r). See 23
U.S.C. 135(g)(4) and 49 U.S.C. 5304(g)(4). Importantly, proposed
paragraph (r) would require the STIP describe how the projects in the
STIP would achieve the State performance targets--linking investment
priorities to those targets. Because the development of a STIP is a
public process, these new requirements help establish accountability
and transparency of transportation investment decisions.
Section 450.220 Self-Certification, Federal Findings, and Federal
Approvals
Existing Sec. 450.218 would become Sec. 450.220. Proposed Sec.
450.220 describes how States would self-certify that the transportation
planning process is being carried out in accordance with all applicable
requirements, including MAP-21 requirements. It also describes how FHWA
and FTA would approve the STIP after the State submits the STIP to FHWA
and FTA. This section would be largely unchanged except that in Sec.
450.220(a)(4) the reference to section
[[Page 31798]]
1101(b) of SAFETEA-LU would become section 1101(b) of MAP-21, the
successor provision.
Section 450.222 Project Selection From the STIP
Existing Sec. 450.220 would become Sec. 450.222. Proposed Sec.
450.222 describes the procedures for the selection of projects from the
STIP by the State and the MPOs. This section is changed in two ways.
First, it would be revised to reflect MAP-21's increased emphasis on
nonmetropolitan transportation planning. Second, it would be updated to
reflect name changes to tribal funding programs. These changes are
described below.
Proposed paragraph (c) would be revised to include the new MAP-21
requirements (23 U.S.C. 135(g)(6) and 49 U.S.C. 5304 (g)(6)) for States
to cooperate with nonmetropolitan areas when selecting projects from
the STIP for projects that are not on the NHS. This proposed new
requirement will require States work with local officials, or, if
applicable, RTPOs, when selecting projects from the STIP in
nonmetropolitan areas. Prior to MAP-21, States were not required to
conduct outreach with nonmetropolitan local officials when selecting
projects from the STIP that are not on the NHS.
In revised Sec. 450.222(d), ``Federal Lands Highway Program''
would be changed to ``Tribal Transportation Program, Federal Lands
Transportation Program, and Federal Lands Access Program'' to reflect
MAP-21 changes to 23 U.S.C. 201-204.
Section 450.224 Applicability of NEPA to Statewide Transportation Plans
and Programs
Section 450.222 would become Sec. 450.224 and be unchanged except
that the acronym NEPA is spelled out as the ``National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.).'' This change would be
made throughout the proposed regulations; please see the redline
version of the regulatory text included in the docket for further
information.
Section 450.226 Phase-In of New Requirements
Existing Sec. 450.224 would become Sec. 450.226. This proposed
section updates the schedule for implementation based on MAP-21
changes. The section is based on provisions in 23 U.S.C. 135(l) and 49
U.S.C. 5304(k), as well as the new performance requirements in 23
U.S.C. 150 and 49 U.S.C. 5326 and 5329.
For purposes of phasing in the new MAP-21 requirements, there are
two categories of changes. The first category is those changes that are
unrelated to performance management, and the second category is those
changes that are performance management related. The FHWA and FTA
propose two different phase-in schedules, one for each category of
changes.
The major change unrelated to performance management is the new
emphasis on nonmetropolitan transportation planning. The FHWA and FTA
propose that STIPs and statewide long range plans adopted on or after a
date 2 years after publication of this final rule in the Federal
Register must reflect this new emphasis. The FHWA and FTA would only
approve STIP amendments or updates that are based on a planning process
that incorporates the new emphasis on nonmetropolitan transportation
planning. For instance, if this final rule were published in fall of
2014, FHWA and FTA would only approve a STIP after fall of 2016 that
meets the non-performance-based requirements of this rule. The FHWA and
FTA also propose that before the end of this 2-year period, States may
use the new MAP-21 requirements in developing STIPs and long-range
transportation plans. The FHWA and FTA believe this approach is
consistent with MAP-21 requirements (23 U.S.C. 135(l) and 49 U.S.C.
5303(k)) and does not require the State to deviate from its established
planning update cycle to implement MAP-21 changes. This approach also
meets the requirement that States shall reflect changes made to their
transportation plan or STIP updates not later than 2 years after the
date of issuance of guidance by the Secretary.
The second phase-in schedule would be for the new performance
management requirements proposed in this NPRM (e.g., discussion of
targets in long range plans and STIPs, requirements to coordinate
target selection, linking of targets to investment priorities in STIPs,
system performance reports, integration of elements of other plans)
that depend on issuance of FHWA's and FTA's performance rules. The FHWA
and FTA propose that updates and amendments to any STIPs and plans
based on these new performance management requirements would be based
on the effective date of the performance measures rules implementing 23
U.S.C. 150 and 49 U.S.C. 5326 and 5329.\38\ The FHWA and FTA currently
anticipate that the performance rules implementing these provisions
would have the same effective date. If the effective date of these
performance measure rules is not the same, the phase-in of the new
performance management requirements would be based on the effective
date of each individual performance measure rule. In order to determine
the appropriate phase-in schedule of the new performance management
requirements, FHWA and FTA balanced a number of statutory provisions
and logistical and practical considerations. Each of these provisions
has specific timing requirements for establishment of targets:
---------------------------------------------------------------------------
\38\ Federal-aid Highway Performance Measure Rules [RIN 2125-
AF49, 2125-AF53, 2125-AF54], Transit Asset Management Rule [RIN
2132-AB07], and National and Public Transportation Safety Plans Rule
[RIN 2132-AB20].
---------------------------------------------------------------------------
23 U.S.C. 150(d)(1)--States would have 1 year from the
effective date of the performance management rule to establish targets
(the specific timing will be discussed in the separate rulemaking
implementing 23 U.S.C. 150);
49 U.S.C. 5329(d)(1)--States or recipients would be
required to include performance targets in a safety plan 1 year after
the effective date of the final rule; and
49 U.S.C. 5326(c)--Recipients would need to establish
performance targets not later than 3 months after the issuance of the
final rule and each fiscal year thereafter.
Once States or recipients establish targets, MPOs would be required
to establish targets not later than 180 days after the date on which
the relevant State or recipient establishes performance targets (23
U.S.C. 134(h)(2) and 49 U.S.C. 5303(h)(2)). These targets would need to
be coordinated among the States, MPOs, and providers of public
transportation to ensure consistency.
The FHWA and FTA determined that giving States, recipients, and
MPOs 2 years following the effective date of the performance rules
would provide adequate time for the relevant States, recipients, and
MPOs to develop targets, coordinate targets, and include any
performance-based planning requirements in their transportation
planning process and related documents. This phase-in period would also
provide time to integrate into the transportation planning process,
directly or by reference, the goals, objectives, performance measures,
and targets from other transportation plans and transportation
processes, as proposed in 23 CFR 450.206(c) and 450.306(d). Depending
on the measure, providing a 2-year phase-in of these requirements may
provide MPOs additional time after the establishment of the targets to
include these targets in any new or amended metropolitan or
[[Page 31799]]
long range statewide transportation plans or transportation improvement
programs.
Consistent with the statutory requirement in 23 U.S.C. 135(l) and
49 U.S.C. 5304(k), FHWA and FTA are not proposing to require a State to
deviate from its established planning update cycle to implement the
changes required by MAP-21 to the planning process.
Subpart C--Metropolitan Transportation Planning and Programming
Section 450.300 Purpose
Similar to the ``Purpose'' section of subpart B, existing Sec.
450.300 would be revised to make two changes to reflect that under MAP-
21 the metropolitan planning process becomes a performance-based
process. The two changes include adding reference to the new 23 U.S.C.
150 and adding ``performance-based'' before the reference to the
``multimodal transportation planning process.''
Section 450.306 Scope of the Metropolitan Transportation Planning
Existing Sec. 450.306 describes the scope of the metropolitan
transportation planning process. Similar to proposed revisions to Sec.
450.206 (the scope of the statewide and nonmetropolitan transportation
planning process), FHWA and FTA propose to revise this section to
incorporate MAP-21's critical performance-based changes to the planning
process. States, MPOs, and providers of public transportation would
link investment priorities (the transportation improvement program of
projects) to achieving performance targets in key areas. Elements of a
performance management approach would be included in the proposed
revisions paragraphs (a) and (d): An emphasis on developing planning
documents through a performance-based approach, establishment of
performance targets, coordination of performance targets, and the
integration of elements of other performance-based plans. These major
proposed changes as well as other minor proposed changes are further
described below.
Section 450.306 would be revised to add proposed new Sec.
450.306(a) to reflect the new statutory language in 23 U.S.C. 134(c)
and 49 U.S.C. 5303(c)(1) requiring a performance driven, outcome-based
approach to planning for metropolitan areas.
Section 450.306(b) would become Sec. 450.306(c) and be revised to
add ``(including Section 4(f) properties as defined in 23 CFR 774.17)''
after ``human and natural environment'' to clarify that Section 4(f)
properties should be included in considerations of human and natural
environment for purposes of this section. This change also reflects the
2008 revision to the joint FHWA and FTA Section 4(f) regulations, which
are now contained in 23 CFR 774 and include a definition for ``Section
4(f) Property''.
Revised Sec. 450.306(d) is proposed to incorporate MAP-21
requirements for a performance-based approach to metropolitan
transportation planning. See 23 U.S.C. 134(h)(2) and 49 U.S.C.
5303(h)(2). As described in paragraph (d)(1), part of the metropolitan
planning process would include supporting the national goals, described
in 23 U.S.C. 150(b), and general purposes, described in 49 U.S.C.
5301(c).
Proposed new paragraph (d)(2) starts building the foundational
steps to this performance-based approach for MPOs by requiring them to
establish performance targets for the Federal-aid highway program based
on measures that FHWA will develop in separate rulemakings (Federal-aid
Highway Performance Measure Rules [RIN 2125-AF49, 2125-AF53, 2125-
AF54]). These separate rulemakings will contain detailed requirements
for establishing targets. This paragraph also would require MPOs to
establish performance targets using the measures and standards that FTA
will develop in separate rulemakings (Transit Asset Management Rule
[RIN 2132-AB07] and National and Public Transportation Safety Plans
Rule [RIN 2132-AB20]). As part of the planning process, in proposed
paragraph (d)(2), MPOs would be required to coordinate the selection
and establishment of targets. When establishing targets for the
Federal-aid highway program, MPOs would be required to ensure that the
MPOs' and State's targets are as consistent as practicable. When
establishing transit-related targets, MPOs would be required to
coordinate to the maximum extent practicable with providers of public
transportation. These coordination requirements would be based on the
new MAP-21 requirements in 23 U.S.C. 134(h)(2)(B) and 49 U.S.C.
5303(h)(2)(B).
Paragraph (d)(3) would require MPOs to select performance targets
not later than 180 days after the date on which the relevant State or
provider of public transportation establishes performance targets based
on the MAP-21 requirements.
Paragraph (d)(4) would continue to build the foundational steps by
requiring MPOs to integrate into the metropolitan transportation
planning process the elements (goals, objectives, performance measures,
and targets) in other State transportation plans and processes, as well
as any plans developed by providers of public transportation in the
metropolitan planning area, required as part of a performance-based
program. Examples of other performance-based plans and processes
include the SHSP, as defined in the HSIP (23 U.S.C. 148), the State NHS
asset management plan for highways in 23 U.S.C. 119(e), the transit
asset management plan as defined in 49 U.S.C. 5326, the Public Agency
Safety Plan in 49 U.S.C. 5329(d), the optional State Freight Plan, as
described in MAP-21 section 1118, the CMAQ performance plan in 23
U.S.C. 149(l), the congestion management process, and other State
transportation plans and processes required as part of a performance-
based program.
Existing Sec. 450.306(c) would become Sec. 450.306(e) and be
changed to include that the performance-based planning aspects of the
metropolitan transportation planning process, as described above in
proposed new paragraph (d), are not reviewable by any court. These
changes are consistent with MAP-21 changes to 23 U.S.C. 134(h)(3) and
49 U.S.C. 5303(h)(3).
Existing Sec. 450.306 (e) and (h) would be deleted and references
to the new NHS asset management plan and the Transit Asset Management
Plan, other safety and security planning and review processes, plans,
and programs, and the SHSP would be moved to Sec. 450.306(d)(5). These
would be moved because, as discussed above, this section includes the
MAP-21 requirements to integrate elements of other performance-based
plans into the metropolitan transportation planning process.
Existing Sec. 450.306(i) would be moved to new Sec. 450.310(c).
Section 450.308 Funding for Transportation Planning and Unified
Planning Work Programs
Existing Sec. 450.308 would be retained and updated. This section
describes funding for metropolitan transportation planning and the
development of Unified Planning Work Programs (regulations for these
work programs are contained in 23 CFR part 420).
Proposed Sec. 450.308(a) would remove reference to the Equity
Bonus Program, formerly codified at 23 U.S.C. 105, because MAP-21
repealed this program and it is no longer available as a funding
source. Proposed Sec. 450.308(a) would also add the sentence, ``At the
option of the State, funds provided under 49 U.S.C. 5305(e) may also be
provided to MPOs for activities that support metropolitan
transportation planning.'' This proposed sentence does not reflect
[[Page 31800]]
a change in the law, but rather would be added to clarify that funds
apportioned under 23 U.S.C. 5305(e), which are primarily for the
purpose of State planning and research, are a possible source of
funding to MPOs for activities that support metropolitan transportation
planning. Statutory references in Sec. 450.308(a) would be updated as
follows: 23 U.S.C. 104(f) becomes 23 U.S.C. 104(d), reference to 49
U.S.C. 5305(d) is added, reference to 49 U.S.C. 5339 is deleted,
reference to 23 U.S.C. 104(b)(1) and (b)(3) becomes 23 U.S.C.
104(b)(2), and reference to 23 U.S.C. 133(d)(3)(E) becomes 23 U.S.C.
133(d)(4). All of these changes would be based on changes from MAP-21.
Proposed Sec. 450.308(d) would replace the word ``would'' with the
word ``shall'' to clarify that the requirements described in (d) are
requirements of any simplified statement of work.
Existing Sec. 450.308(f) would be unchanged, except FHWA and FTA
propose remove ``.1B'' after the reference to FTA Circular C8100 and
instead add the words ``as amended'' after the reference to FTA
Circular C8100 to accommodate possible future editions of this
circular. Proposed Sec. 450.308(f) would also update the title of this
circular to reflect the most recent edition, which is called ``Program
Guidance for Metropolitan Planning and State Planning and Research
Program Grants.''
Section 450.310 Metropolitan Planning Organization Designation and
Redesignation
Existing Sec. 450.310 would be retained and revised to reflect
changes from MAP-21, including changes to the structure of an MPO
serving a TMA by adding representation by providers of public
transportation to the list of officials that must be included. In
addition, the proposed changes would move other provisions related to
TMAs to this section. These changes, and other more minor changes, are
described below.
Proposed Sec. 450.310(c) is moved from existing Sec. 450.306(i)
and would be modified to reflect changes from MAP-21. In the first
sentence, ``designate'' would be changed to ``identify,'' and the word
``additional'' would be deleted from this paragraph. The revisions
would not change the meaning of this paragraph.
Consistent with MAP-21's requirements, proposed Sec. 450.310(d)(1)
would also require the structure of a MPO serving a TMA consist of
representation by providers of public transportation, in addition to
the officials identified in the existing regulations, and that each MPO
serving a TMA satisfy the structure requirements no later than October
1, 2014. This NPRM proposes that representatives of providers of public
transportation would have equal decisionmaking rights and authorities
as other officials who are on the policy board of an MPO that serves a
TMA. It is up to the MPO, in cooperation with providers of public
transportation, to determine how this representation will be structured
and established. The MPOs can restructure to meet this requirement
without being redesignated by the Governor and local officials.
The FHWA and FTA have received several questions and comments \39\
generally on how an MPO serving a TMA must be structured. As a result
of these questions and comments, FHWA and FTA are requesting comment on
whether any of the following questions should be addressed in the
proposed regulation and, if so, how:
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\39\ On September 30, 2013, FTA and FHWA published ``Proposed
Policy Guidance on Metropolitan Planning Organization
Representation'' for notice and comment. 78 FR 60015.
---------------------------------------------------------------------------
Should the regulations clarify who appropriate
``officials'' may be?
Can staff members or other alternates be substituted for
the ``officials'' identified in paragraph (d)(1)?
Can an official in paragraph (d)(1) serve in multiple
capacities on the MPO board, e.g., can a local elected official or
State official also serve as a representative of a major mode of
transportation?
Should the regulations provide more specificity on how
each of the officials identified in paragraph (d)(1) should be
represented on the MPO?
Should the regulations include more information about MPO
structure and governance?
To ease any necessary changes to MPO structure, the proposed rule
includes new paragraph (d)(2), which would provide that an MPO may be
restructured to meet the structure requirements without undergoing a
redesignation. Since MAP-21 now provides a specific date for compliance
with the required structure for an MPO serving a TMA, proposed new
paragraph (d)(3) would require all the TMA MPOs to comply with this
structure by October 1, 2014, except those MPOs that are exempt under
23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3). This exemption has
existed in statute in some form since 1991. The FTA and FHWA's long-
standing interpretation of this provision is that an exemption from the
MPO structure requirements is only appropriate for an MPO where (1) the
MPO operates pursuant to a State law that was in effect on or before
December 18, 1991; (2) such State law has not been amended after
December 18, 1991, as regards to the structure or organization of the
MPO; and (3) the MPO has not been designated or re-designated after
December 18, 1991. An MPO that claims it qualifies for this exemption
must self-certify its exempt status with the FTA and FHWA as part of
the MPO certification process described at 23 CFR 450.334 or through
some other documentation. The proposed rule would add this statutory
provision (23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3)) to the
regulations.
Existing Sec. 450.310(l)(3) adds ``described in paragraph (d).''
Section 450.312 Metropolitan Planning Area Boundaries
Proposed Sec. 450.312 describes how metropolitan planning area
boundaries would be established by agreement between the MPO and the
Governor. This area is the geographic area in which the MPO carries out
the metropolitan transportation planning process. This section is
largely unchanged, with some minor, nonsubstantive, exceptions.
Existing paragraph (a) would be split into two paragraphs. In paragraph
(f), ``the appropriate'' would be added before ``MPOs.'' In paragraph
(i), ``reduces access disadvantages experienced by'' would be revised
to ``improves access to.'' None of these revisions are intended to
change the meaning of this section.
Section 450.314 Metropolitan Planning Agreements
The metropolitan planning agreement helps facilitate the working
relationship among MPOs, States, and providers of public
transportation. Currently, MPOs, States, and providers of public
transportation are required to form metropolitan planning agreements to
delineate their respective responsibilities in the metropolitan
planning process, including provisions for the cooperative development
and sharing of information related to the formation of financial plans,
the TIP, and the annual list of obligated projects.
The FHWA and FTA propose to revise Sec. 450.314(a) to require that
MPOs modify their existing metropolitan planning agreements to identify
how the parties would work together to implement MAP-21's performance-
based planning provisions. The modified metropolitan planning
agreements would additionally identify
[[Page 31801]]
how the MPO, State, and providers of public transportation will collect
transportation system performance data, select performance targets for
the metropolitan area, report metropolitan area targets, report actual
system performance related to those targets, and collect data for asset
management plans for the NHS. These proposed changes would make the
metropolitan planning agreement a focal point for establishing how the
MPO, the State, and providers of public transportation will
cooperatively implement the performance-based planning and related
performance management provisions in MAP-21. States, MPOs, and
providers of public transportation would need to coordinate their
targets in key national performance areas and document expectations for
future performance. Also, this section proposes that the metropolitan
planning agreement describe the collection of data for the State asset
management plan for the NHS. The NHS is on both State and locally owned
highways. Given multiple NHS highway ``owners,'' the agreement can
serve as a mechanism for identifying respective roles and
responsibilities of the State and local governments related to
collecting data for the NHS asset management plan in metropolitan
areas.
Section 450.314(a) also would be revised to replace the phrase
``public transportation operator(s)'' with ``providers of public
transportation'' because this is the phrase used in statute. A new
Sec. 450.314(b) would be added to require that metropolitan planning
agreements should be reviewed periodically and updated as necessary. A
need for changes could result from a number of factors, such as new
Federal legislation or regulations. This is proposed to ensure that
metropolitan planning agreements remain relevant and reflect current
planning needs in metropolitan areas.
Existing Sec. 450.314(d) describes the requirement for an
agreement when more than one MPO has been designated to serve an
urbanized area. Existing Sec. 450.314(d) would become proposed Sec.
450.314(e), and would be unchanged with the exception that it would be
revised to require that MPOs modify their existing metropolitan
planning agreements to identify how the parties would work together to
implement MAP-21's performance-based planning provisions.
Existing Sec. 450.314(f) describes the requirement for an
agreement when part of an urbanized area that has been designated as a
TMA overlaps into an adjacent MPA serving an urbanized area that is not
designated as a TMA. Existing Sec. 450.314(f) would become proposed
Sec. 450.314(g) and would be unchanged with the exception that,
similar to proposed Sec. Sec. 450.314(a) and 450.314(e), it would be
revised to require that MPOs modify their existing metropolitan
planning agreements to identify how the parties would work together to
implement MAP-21's performance-based planning provisions. The MAP-21
requires that the States and MPOs coordinate their targets with each
other to ensure consistency, to the maximum extent practicable. In
addition, for transit-related targets, MAP-21 requires States and MPOs
to coordinate their targets relating to safety and state of good repair
with providers of public transportation to ensure consistency with
other performance-based provisions applicable to transit providers, to
the maximum extent practicable. The proposed revisions to the
metropolitan planning agreement requirements in this section are
intended to foster State, MPO, and public transportation provider
coordination and consistency during performance target establishment.
Also, in the case where there are multiple MPOs serving a single
urbanized area, the agreement established under proposed Sec.
450.314(e) would assist with coordination among the MPOs, States, and
providers of public transportation serving this single urbanized area
such that the individual State and MPO targets are consistent to the
maximum extent practicable. Similarly, the metropolitan planning
agreement established under Sec. 450.214(f) would foster the
development of consistent performance targets among the States, MPOs,
and providers of public transportation in the situation where part of
an urbanized area that has been designated as a TMA overlaps into an
adjacent MPO serving an urbanized area that is not designated as a TMA.
This coordination should help align MPO and State decisionmaking and
advance performance outcomes for the States.
Section 450.316 Interested Parties, Participation and Consultation
Section 450.316 currently requires an MPO to use a documented
participation plan to provide individuals, affected public agencies,
representatives of public transportation employees, freight shippers,
providers of freight transportation services, private providers of
transportation, representatives of users of public transportation,
representatives of users of pedestrian walkways and bicycle
transportation facilities, representatives of the disabled, and other
interested parties with reasonable opportunities to be involved in the
metropolitan transportation planning process. Examples of affected
public agencies that an MPO might provide with an opportunity to be
involved in the metropolitan planning process under Sec. 450.316(a)
include agencies with responsibility for economic development, human
and natural resources, environmental protection, sustainability,
mitigation, adaptation, climate, and air quality. The participation
plan is required to include, for example, provisions for timely notice
of public meetings and access to information about planning issues and
processes, publishing public information, and responding to public
input.
Proposed Sec. 450.316(a)(2) would be revised to change the general
citation to the transportation conformity regulations (``40 CFR part
93'') to the more specific regulatory citation to the provision in the
transportation conformity regulations that addresses consultation (``40
CFR 93.105'').
Proposed Sec. 450.316(b)(3) would be revised to change the
statutory reference from 23 U.S.C. 204 to 23 U.S.C. 201-204. Although
the relevant MAP-21 provision (23 U.S.C. 134(g)(3)(B)(iii)) continues
to reference only 23 U.S.C. 204, there were significant changes made to
the Federal Lands Highways Program under MAP-21 and that program was
split into several different provisions--23 U.S.C. 201-204. The
metropolitan planning process must provide for the design and delivery
of transportation services provided by recipients of assistance under
all these provisions.
Section 450.318 Transportation Planning Studies and Project Development
Existing Sec. 450.318, which largely mirrors existing Sec.
450.212, would be retained unchanged except for the deletion of
existing paragraph (d). The FHWA and FTA propose to delete paragraph
(d) due to revisions made to 49 U.S.C. 5309 by MAP-21. More
specifically, MAP-21 removed the requirement for a stand-alone
alternatives analysis for projects that seek Section 5309(d) or (e)
funding. The reader should refer to the discussion provided under Sec.
450.212 for an explanation of the proposed retention.
Section 450.320 Development of Programmatic Mitigation Plans
Proposed Sec. 450.320 would follow the same language and format as
proposed Sec. 450.214, with the exception of changing references from
the State or statewide to MPO or metropolitan, as
[[Page 31802]]
necessary. It would be duplicated in subpart C to avoid the need for
cross referencing and to provide the same option for MPOs to develop
programmatic mitigation plan(s) in the metropolitan transportation
planning process. The reader should refer to the discussion provided
under Sec. 450.214 for an explanation of the proposed changes.
Section 450.322 Congestion Management Process in Transportation
Management Areas
In TMAs, the metropolitan transportation planning process must
include a congestion management process, 23 U.S.C. 134(k)(3). The
congestion management process provides for the effective management of
new and existing transportation facilities through the use of travel
demand reduction and operational strategies. When developing and
implementing a congestion management process, MPOs may use the process
to support the performance-based approach to transportation
decisionmaking. Specifically, the congestion management process may
support the performance-based approach to metropolitan transportation
planning in this part, support applicable performance measures
established under section 23 U.S.C. 150(c), and also support applicable
national goals described in section 23 U.S.C. 150(b) and in 49 U.S.C.
5301.
Existing Sec. 450.320(b) would be revised and split into Sec.
450.322(b) and (c). Proposed Sec. 450.322(c) would add ``and improve
efficient service integration within and across modes, including
highway, transit, passenger and freight rail operations, and non-
motorized transport'' to the list of strategies to manage demand and
improve operations. This added provision would encourage States, MPOs,
and operators of public transportation to develop multimodal strategies
to manage demand and improve operations.
Existing Sec. 450.320(c) would become Sec. 450.322(d) and be
revised as follows. Paragraph (d)(1) would be revised to add
``underlying'' before ``causes of recurring and non-recurring
congestion'' to provide clarity with no change in meaning. Paragraph
(d)(2) would be revised to add ``including providers of public
transportation.'' This revision would emphasize that States and MPOs
need to consult with local officials and operators of major modes of
transportation, including providers of public transportation as they
define levels of acceptable system performance as part of the
congestion management process. This change closely tracks MAP-21's
added provision in 23 U.S.C. 134(d)(2) and 49 U.S.C. 5303(d)(2), which
requires representation of providers of public transportation on MPOs.
Section 450.324 Development and Content of the Metropolitan
Transportation Plan
Existing Sec. 450.322 would become Sec. 450.324. It would be
revised to reflect MAP-21's provision that each MPO must implement a
performance-based approach in the development of its metropolitan
transportation plan. The metropolitan transportation plan is a
multimodal transportation plan addressing at least a 20-year planning
horizon for the metropolitan planning area. The proposed performance-
based changes to this section would require each MPO to describe in its
metropolitan transportation plan the performance measures and
performance targets it used to assess the performance of its
transportation system. The MPO must also include a system performance
report in the plan that contains its evaluation of the condition and
performance of the transportation system with respect to performance
targets established to address the performance measures identified
under 23 U.S.C. 150(c), and 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d).
The MPO must also report on the progress it achieves in meeting its
performance targets in comparison with the system performance recorded
in previous reports. This section is also revised to propose that MPOs
may use scenario planning, a tool to inform decisionmakers about the
implications of various transportation system investments and
performance, during the development of their plan. Finally, this
section encourages the MPO, when developing the financial plan as part
of the long range plan, to assess the appropriateness of innovative
finance techniques in its development of financing strategies. In
addition, when assessing its capital investments as part of the plan,
the MPO should consider the financial plans and investment strategies
that are part of the State Asset Management Plan for the NHS (as
defined in 23 U.S.C. 119(e)) and of the investment priorities of the
public transit asset management plan (as discussed in 49 U.S.C. 5326).
These changes, and other minor changes, are as follows.
Proposed Sec. 450.324(a) would be revised to add ``In formulating
the transportation plan, the metropolitan planning organization shall
consider factors described in Sec. 450.306 as the factors relate to a
20-year forecast period.'' to clarify that MPOs shall consider planning
factors that are described in Sec. 450.306.
Existing Sec. 450.322(b) would be retained as proposed Sec.
450.324(b) and be revised to provide clarity by changing ``lead to'' to
``provide for.'' Reference to ``including accessible pedestrian and
bicycle transportation facilities'' would be added to be consistent
with 23 U.S.C. 134(c)(2) and 49 U.S.C. 5303(c)(2).
Existing Sec. 450.322(f) would become Sec. 450.324(f) and be
revised to add the MAP-21 requirements or clarify existing requirements
for a metropolitan transportation plan, as described below.
Existing Sec. 450.322(f)(1) would become Sec. 450.324(f)(1) and
be revised to require that, in addition to the projected demand for
transportation, an MPO must include the current transportation demand
of persons and goods in the metropolitan transportation plan. This
change would enable the public and decision makers to better understand
existing transportation system needs.
Existing Sec. 450.322(f)(2) would become proposed Sec.
450.324(f)(2). It would be revised for clarity and to include MAP-21
changes that specifically require MPOs to identify ``nonmotorized
transportation facilities'' in the Metropolitan Transportation Plan.
While the term ``nonmotorized transportation facilities'' is added to
reflect MAP-21, the existing regulation requires MPOs to identify
pedestrian walkways and bicycle facilities in their metropolitan
transportation plans. To reflect this change, this paragraph would be
revised to state ``nonmotorized transportation facilities (e.g.,
pedestrian walkways and bicycle facilities).'' See 23 U.S.C.
134(i)(2)(A)(i) and 49 U.S.C. 5303(i)(2)(A)(i). This section also would
be updated to reflect that the legislation eliminated the requirement
for an Alternatives Analysis.
Proposed new paragraphs (f)(3) and (4) would require that MPOs
include important elements of MAP 21's performance-based approach into
the metropolitan transportation plan. Specifically, MAP-21 requires
that MPOs describe performance targets, evaluate the condition and
performance of the transportation system, and report in the
metropolitan transportation plan on progress it has achieved toward
their performance targets. See 23 U.S.C. 134(i)(2)(B) and (C) and 49
U.S.C. 5303(i)(2)(B) and (C).
New paragraph (f)(3) proposes to require that an MPO describe in
its metropolitan transportation plan the performance measures and
performance targets that it used to assess the
[[Page 31803]]
performance of the transportation system.
New paragraph (f)(4) proposes to require that an MPO include a
system performance report that describes the MPO's evaluation of the
condition and performance of the transportation system with respect to
performance targets identified in Sec. 450.324(f)(3) and the progress
toward the achievement of the performance targets. This section also
proposes to require that MPOs that elect to use scenario planning
during the development of their metropolitan transportation plans must
also describe how the preferred scenario would improve the condition
and performance of the transportation system and how changes in local
development policies and investment strategies would impact the cost of
achieving established performance targets. The option for MPOs to
develop multiple scenarios is discussed below in proposed Sec.
450.324(i).
Existing Sec. 450.322(f)(5) would become Sec. 450.324(f)(7) and
be revised to include a provision that as MPOs assess capital
investment and other strategies to preserve the existing and projected
metropolitan transportation infrastructure and provide for multimodal
capacity increases, they should consider the financial plan and
investment strategies from the newly required State asset management
plan for the NHS (as defined in 23 U.S.C. 119(e)) and the investment
priorities of the newly required public transit asset management plans
(as discussed in 49 U.S.C. 5326). Information from these newly required
plans can inform MPOs in their capital investment decisionmaking
process. Furthermore, they may also consider energy plans, and
strategies that will enhance the resiliency of the transportation
system to current and future conditions. Such conditions could include
severe weather events and changes in weather patterns.
Existing Sec. 450.322(f)(9) would become proposed Sec.
450.324(f)(8), which adds references to ``transportation alternatives''
and ``associated transit improvements,'' as described in 23 U.S.C.
101(a) and 49 U.S.C. 5302(a) respectively, to reflect new programs that
fund projects similar to those funded under the former Transportation
Enhancements and Transit Enhancement Programs. The statute still
requires ``transportation and transit enhancement activities'' to be
included in a metropolitan transportation plan (23 U.S.C. 134(i)(2)(H)
and 49 U.S.C. 5303(i)(2)(H)).
Existing Sec. 450.322(f)(10) would become Sec. 450.324(f)(11). In
Sec. 450.324(f)(11)(iii), language would be added, ``the financial
plan may include an assessment of the appropriateness of innovative
finance techniques (for example, tolling, pricing, bonding, public
private partnerships, or other strategies) as revenue sources for
projects in the plan,'' in consideration of 23 U.S.C. 106(h)(3)(D),
which encourages early consideration of innovative finance as part of a
project financial plan. Reference to the December 11, 2007, date in
Sec. 450.324(f)(11)(iv) would be deleted because this date has passed.
Existing Sec. 450.322(h) would become Sec. 450.324(h) and would
be revised to state that MPOs should integrate into the metropolitan
transportation plan the goals, objectives, performance measures, and
strategies described in the HSIP, including in the SHSP required under
23 U.S.C. 148 and the Public Transportation Agency Safety Plan required
under 49 U.S.C. 5329, the FHWA and FTA propose removing reference to
the term ``targets'' because MPOs would be required to integrate
targets from these plans and processes into the transportation planning
process under proposed Sec. 450.306(d).
Consistent with MAP-21, the proposed Sec. 450.324(i) would
encourage MPOs to elect to undertake scenario planning as part of the
development of the metropolitan transportation plan. Scenario planning
is an analytical tool that provides a framework for developing a shared
vision of the future. It informs decisionmakers and the public about
the potential implications of various investments and policies on
transportation system condition and performance. Scenario planning is
currently used by many MPOs as part of their transportation planning
process and FHWA and FTA consider it a best practice. This proposed
section describes the suggested framework that MPOs may follow as they
develop those scenarios including potential regional investment
strategies, alternative distributions of population and employment,
land use, future climate scenarios, system performance measures
including locally developed measures, and the relationship among a
wider array of investments and local priorities. See 23 U.S.C.
134(i)(4) and 49 U.S.C. 5303(i)(4).
Existing Sec. 450.322(l) would be retained and revised and become
proposed Sec. 450.324(m). Language would be added to describe the 12-
month conformity lapse grace period in accordance with the Clean Air
Act and the transportation conformity regulations (40 CFR part 93,
subpart A). This change would be included here because it provides a
grace period of up to 1 year before the existing conformity
determination on the metropolitan plan will lapse. Specific information
on conformity lapse grace period can be found in the transportation
conformity regulations at 40 CFR 93.104.\40\ The FHWA and FTA propose
these revisions to incorporate the changes to the conformity
regulations that have occurred since the last revisions to 23 CFR part
450. In addition, the general reference to the interagency consultation
definition in ``40 CFR part 93'' would be replaced with the more
specific citation at ``40 CFR 93.105.''
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\40\ For more information please see Transportation Conformity
Rule Amendments to Implement Provisions contained in the 2005 Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU), 73 FR 4420, 4423 (Jan. 24, 2008).
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Section 450.326 Development and Content of the Transportation
Improvement Program (TIP)
Existing Sec. 450.324 would become Sec. 450.326 and would
describe the development and the content of the TIP. The TIP is the
prioritized program of transportation projects covering a period of 4
years that is developed and adopted by the MPO and approved by the
Governor. This section would be revised to incorporate MAP-21's
transformation of the planning and programming process to a
performance-based planning and programming process (see proposed new
paragraphs (c) and (d)) as well as other minor changes. The proposed
revisions are as follows.
Proposed Sec. 450.326(a) would be revised to add one of the MAP-21
general requirements for a TIP--that the TIP ``shall reflect the
investment priorities established in the current metropolitan
transportation plan.'' See 23 U.S.C. 134(j)(1)(A)(ii) and 49 U.S.C.
5303(j)(1)(A)(ii).
The FHWA and FTA propose to incorporate MAP-21 requirements for a
performance-based TIP in proposed new Sec. 450.326(c) and new Sec.
450.326(d). See 23 U.S.C. 134(j)(1)(A) and (j)(2)(D) and 49 U.S.C.
5303(j)(1)(A) and (j)(2)(D). Proposed paragraph (c) would require that
MPOs design TIPs that make progress toward achieving MPO performance
targets. Importantly, proposed paragraph (d) would require the TIP
describe how the projects in the TIP would achieve the MPO performance
targets--linking investment priorities to those targets. Because the
development of a TIP is a public process, these new requirements would
promote greater accountability and transparency of transportation
investment decisions.
[[Page 31804]]
Existing Sec. 450.324(c) would become Sec. 450.326(e) and be
revised to reflect MAP-21 changes to programs, phrases, and plans.
Those changes are ``transportation enhancements'' would become
``transportation alternatives,'' and ``transit enhancements'' would
become ``associated transit improvements.'' ``Strategic Highway Safety
Plan'' would be updated to become the ``Highway Safety Improvement
Program'' since the HSIP is the safety funding program associated with
funding safety projects in the TIP. ``Federal Lands Highway Program''
would be changed to ``Tribal Transportation Program, Federal Lands
Transportation Program, and Federal Lands Access Program'' to reflect
MAP-21 changes to 23 U.S.C. 201-204. In addition, ``accessible'' would
be added before ``pedestrian walkways.'' Statutory citations referenced
in proposed Sec. 450.326(e)(2) would be changed as follows: 23 U.S.C.
104(f) becomes 23 U.S.C. 104(d), and 49 U.S.C. 5339 is deleted. Under
proposed Sec. 450.326(e)(4), ``National Highway System'' and ``Equity
Bonus'' would be deleted because the programs are not continued under
MAP-21, and eligibility is not continued under the NHPP program that
replaced the NHS program. In addition ``State planning and research
projects'' is replaced with ``metropolitan planning projects'' to
correct an error in the existing regulations. Because of the creation
of FTA's emergency relief funding program, FHWA and FTA want to clarify
that Sec. 450.324(c)(5), which indicates that emergency relief
projects meeting certain conditions are not required to be included in
the TIP, would not apply to resiliency projects funded under 49 U.S.C.
5324.
Existing Sec. 450.324(f) would become proposed Sec. 450.326(h)
and be updated to add ``subpart A'' after the second reference to ``40
CFR part 93'' to be more specific regarding the citation for the
transportation conformity regulations.
Existing Sec. 450.324(h) would become Sec. 450.326(j) and be
unchanged, except that the reference to 270 days after the effective
date of the old rule would be deleted because this date has passed and
reference to ``(but is not required to)'' after the word ``may'' would
be deleted because it is redundant.
Consistent with the new requirements to integrate elements of other
performance-based plans into the metropolitan transportation planning
process as described above, a new paragraph (m) would be added to
indicate that the TIP should be informed by the financial plan and
investment strategies from the State asset management plan for the NHS
and the public transit asset management plan. See 23 U.S.C.
134(h)(2)(D) and 49 U.S.C. 5303(h)(2)(C). The financial plan of the
State asset management plan for the NHS and the investment strategies
of the public transit asset management plan are elements of new
performance-based plans required under MAP-21. The FHWA and FTA propose
in this section that MPOs consider these elements as part of the
investment decisionmaking process to inform the TIP.
Existing Sec. 450.324(k) would be deleted because the topic is
addressed in proposed Sec. 450.324(j).
Existing Sec. 450.324(m) would become proposed Sec. 450.326(p)
and be revised to include language describing the 12-month conformity
lapse grace period in accordance with the Clean Air Act and the
transportation conformity regulations (40 CFR part 93, subpart A). This
change would be included here because it provides a grace period of up
to 1 year before the existing conformity determination on the TIP will
lapse. Specific information on conformity lapse grace period can be
found in the transportation conformity regulations at 40 CFR 93.104. In
addition, the general reference to the interagency consultation
definition in ``40 CFR part 93'' would be replaced with the more
specific citation at ``40 CFR 93.105.''
Section 450.332 Project Selection From the TIP
Existing Sec. 450.330 would become proposed Sec. 450.332.
References to projects funded under the Bridge or Interstate
maintenance programs would be removed because these programs were
eliminated in MAP-21. Also, ``Federal Lands Highway Program'' would be
changed to ``Tribal Transportation Program, Federal Lands
Transportation Program, and Federal Lands Access Program'' to reflect
MAP-21 changes to 23 U.S.C. 201-204.
Section 450.336 Certifications and Federal Certifications
Existing Sec. 450.334 would be retained and become Sec. 450.336.
Proposed Sec. 450.336 describes the long-standing requirement that the
State and the MPO(s) would periodically certify that the metropolitan
transportation planning process is being carried out in accordance with
all applicable requirements and goes on to specifically describe what
the applicable requirements are.
The only change to this section would be updating reference in
Sec. 450.336(a)(5) from the SAFETEA-LU provision to the successor
provision in MAP-21.
The MPO self-certifications and Federal certifications of the
planning process in TMA areas would continue to be based on meeting the
requirements of 23 U.S.C. 134 and 49 U.S.C. 5303, subject to the phase-
in requirements discussed in proposed Sec. 450.340, and include
meeting the requirements of the MAP-21 planning provisions implemented
through this regulation. Some of the new planning requirements under
Titles 23 and 49, which MPOs would have to meet to self-certify, would
include the performance-based planning requirements. As part of the
self-certification, larger MPOs would also certify that they are
meeting the new requirements for MPO policy board representation in TMA
areas. The FHWA and FTA would review that TMAs are meeting these
requirements during FHWA and FTA certification reviews. The FHWA and
FTA would conduct a certification review of each TMA at least once
every 4 years.
Section 450.340 Phase-In of New Requirements
For purposes of phasing in the MAP-21 requirements, there are two
categories of changes. The first category is those changes that are
unrelated to performance management, and the second category is those
changes that are performance management based. The FHWA and FTA propose
two different phase-in schedules, one for each category of changes.
The proposed changes to this section are similar to the changes
made to the phase-in requirements for the statewide and nonmetropolitan
transportation planning provisions in proposed 23 CFR 450.226. With
respect to any non-performance management changes, FHWA and FTA propose
that the MPOs should follow the same phase-in requirements as the
States, including not deviating from their established planning update
cycle to implement the changes required by MAP-21 to the planning
process. The structure of the planning requirements is based on
integrated statewide and metropolitan planning processes. If the
metropolitan planning process had a different phase-in schedule than
the statewide planning process, the integration of the two processes
would be eroded. There are provisions throughout the statute and
regulations that support this proposal and demonstrate how the
processes are integrated, including:
23 U.S.C. 135(b)(1) and 49 U.S.C. 5304(b)(1) require the
State to coordinate planning carried out under the statewide and
nonmetropolitan provisions with the transportation
[[Page 31805]]
planning activities carried out under the metropolitan planning
provisions.
Existing regulations (23 CFR 450.216(b)) require that the
TIP be included without change in the STIP, directly or by reference,
after approval of the TIP by the MPO and the Governor.
Existing regulations (23 CFR 450.218) provide that the
State shall certify that the transportation planning process is carried
out in accordance with the applicable metropolitan and statewide
planning requirements in 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and
5304.
In 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304,
there are requirements that either the MPO cooperate with the State on
the development of the MPO financial plan and the TIP or that the State
cooperate with the MPO in development of the statewide transportation
plan and the STIP.
Because of all of these requirements to cooperate in the
development of documents and to consider the planning processes
together, FHWA and FTA determined that it is important that both the
metropolitan and the statewide and nonmetropolitan processes have
similar phase-in requirements. The MPOs, as well as States, also would
have the option of developing any planning products consistent with the
new regulatory requirements immediately upon issuance of the planning
final rule.
With respect to any performance management changes, the MPOs would
still need to consider the timing of implementing the new performance-
based planning requirements (e.g., new requirements for the
Metropolitan Planning Agreement).
Appendix A--Linking the Transportation Planning and NEPA Processes
The Agencies propose to retain Appendix A, which will continue to
be referenced in Sec. Sec. 450.212 and 450.318. References to
Alternatives Analysis studies as required for funding under 49 U.S.C.
5309 are proposed to be removed pursuant to the elimination of that
requirement by MAP-21. References to Alternatives Analysis studies as
optional tools for linking planning with the environmental process will
be retained, as these studies may still be completed by project
sponsors at their option.
49 CFR Part 613
This section would be revised to refer to the proposed regulations
in 23 CFR part 450. Because FHWA and the FTA jointly administer the
transportation planning and programming process, we propose to keep the
regulations identical.
V. Regulatory Analyses and Notices
All comments received on or before the close of business on the
comment closing date indicated above will be considered and available
for examination in the docket at the location specified in the
ADDRESSES section above. Comments received after the comment closing
date will be filed in the docket and considered to the extent
practicable. In addition to late comments, we will continue to file
relevant information in the docket as it becomes available after the
comment period closing date, and interested persons should continue to
examine the docket for new material.
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review) and DOT Regulatory
Policies and Procedures
The FHWA and FTA have determined preliminarily that this rulemaking
would be a significant regulatory action within the meaning of
Executive Order 12866, and is significant under DOT regulatory policies
and procedures because of substantial State, congressional, local
government, and public interest. These interests involve receipt of
Federal financial support for transportation investments, appropriate
compliance with statutory requirements, and balancing of transportation
mobility and environmental goals. The changes proposed herein would add
new analysis, coordination, and documentation requirements (e.g.,
performance-based planning and programming, cooperation with local
officials responsible for transportation or, if applicable, RTPOs, and
new requirements for TMA MPO policy board membership). In preparing
this proposal, FHWA and FTA have sought to maintain existing
flexibility of operation wherever possible for States, MPOs, and other
affected organizations, and to use existing processes to accomplish any
new tasks or activities.
The FHWA and FTA have conducted a cost analysis identifying each of
the proposed regulatory changes that would have a significant cost
impact for MPOs, States, or providers of public transportation, and
have estimated those costs on an annual basis. This cost analysis is
included as a separate document, entitled ``Regulatory Cost Analysis of
Proposed Rulemaking,'' and is available for review in the docket.
The FHWA and FTA do not have specific data to assess the monetary
value of the benefits to the proposed changes to the planning process
made by this rule. The FHWA and FTA have not been able to find data or
empirical studies to assist it in monetizing or quantifying the
benefits of this NPRM. In addition, estimates of the benefits of this
NPRM would be difficult to develop. The FHWA and FTA expect that the
proposed regulatory changes to the planning process would improve
decisionmaking through increased transparency and accountability and
support the national goals described in 23 U.S.C. 150(b) and 49 U.S.C.
5301. The proposal would promote transparency by requiring
establishment of performance targets in key areas, such as safety,
infrastructure condition, system reliability, emissions, and
congestion, and by expressly linking investment decisions to the
achievement of such targets. This would be documented in plans
developed with public review. The proposal would promote accountability
through mandating reports on progress toward meeting those targets. The
FHWA and FTA expect that the proposed regulatory changes to the
planning process would support the national goals described in 23
U.S.C. 150(b) and 49 U.S.C. 5301.
Beyond improved transparency and accountability, there are several
other benefits of the proposal. Other elements of the proposal may
improve decisionmaking, such as representation by providers of public
transportation on each MPO that serves a TMA, updating the metropolitan
planning agreements, requiring States to have a higher level of
involvement with nonmetropolitan local officials, and providing an
optional process for the creation of RTPOs. The proposal may enhance
the statewide and nonmetropolitan transportation planning process by
requiring State DOTs to cooperate with nonmetropolitan local officials
or RTPOs, if applicable, when conducting rural transportation planning
giving the local officials or RTPOs a stronger voice in the development
of planning products and project selection. The proposed option for
MPOs to use scenario planning in the development of their metropolitan
transportation plans provides MPOs a framework for improved
decisionmaking through comparison of the performance tradeoffs of
various locally determined scenarios for transportation investment.
Although conducting scenario planning entails costs, savings from
improved implementation could offset these costs. These benefits will
improve the transportation planning process. The FHWA and the FTA
invite comments on
[[Page 31806]]
the potential costs and benefits that might be associated with the
option for MPOs to use scenario planning during development of the
metropolitan transportation plan.
The proposed option for State DOTs and MPOs to develop a
programmatic mitigation plan as part of the statewide and the
metropolitan transportation planning processes provides a framework
whereby States and MPOs may identify environmental resources early in
the planning process and as a result, potentially minimize or avoid
impacts to these resources. This has the potential to streamline
project development and to protect environmental resources and may have
benefits that outweigh the costs of performing the analysis. The FHWA
and the FTA invite comments on the potential costs and benefits that
might be associated with the option for States and MPOs to develop a
programmatic mitigation plan as part of the statewide or metropolitan
transportation planning process.
Based on the cost analysis, we estimate the total cost of this
proposed rule is $30.8 million. Of this total, the estimated costs for
all 52 States \41\ and an estimated 420 MPOs would be approximately
$28.3 million per year. Eighty percent of these costs are directly
reimbursable through Federal transportation funds allocated for
metropolitan planning (23 U.S.C. 104(f) and 49 U.S.C. 5303(h)) and for
State planning and research (23 U.S.C. 505 and 49 U.S.C. 5313). The
estimated cost to 600 providers of public transportation would be
approximately $2.4 million per year. Eighty percent of these costs are
directly reimbursable through Federal transportation funds allocated
for urbanized area formula grants (4 U.S.C. 5307, 49 U.S.C. 5311).
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\41\ This number (52 States) includes the 50 States, the
District of Columbia, and Puerto Rico. This is consistent with the
definition of ``States'' in the current and proposed regulations at
23 CFR 450.104.
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The MAP-21 did not significantly increase the mandatory set-aside
in Federal funds for metropolitan transportation planning, as well as
Statewide Planning and Research funding. The States, providers of
public transportation, and MPOs have the flexibility to use certain
other categories of Federal highway dollars for transportation
planning, such as Surface Transportation Program funds, if they so
desire. Consequently, the increase in non-Federal cost burden
attributable to this proposed rulemaking is estimated to be only $6.2
million per year in total. The total Federal, State, and local cost of
the planning program is $1,166,471,400. As the cost burden of this rule
is estimated to be 2.6 percent of the total planning program, we
believe that the economic impact of this rulemaking would be minimal
and the benefits of implementing this rulemaking would outweigh the
costs.
The FHWA and FTA welcome comments on the economic impacts of these
proposed regulations. Comments, including those from the State DOTs,
providers of public transportation, and MPOs, regarding specific
burdens, impacts, and costs would be most welcome and would aid us in
more fully appreciating the impacts of this ongoing planning process
requirement. The FHWA and FTA encourage comments on all facets of this
proposal regarding its costs, burdens, and impacts.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354;
5 U.S.C. 601-612), FHWA and FTA have determined that States and
metropolitan planning organizations are not included in the definition
of a small entity set forth in 5 U.S.C. 601. Small governmental
jurisdictions are limited to representations of populations of less
than 50,000. Metropolitan planning organizations, by definition,
represent urbanized areas having a minimum population of 50,000.
Because the regulations are primarily intended for States and MPOs,
FHWA and FTA have determined that the action would not have a
significant economic impact on a substantial number of small entities.
Therefore, I hereby certify that the action would not have a
significant economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22,
1995, 109 Stat. 48). This proposed rule would not result in the
expenditure of non-Federal funds by State, local, and tribal
governments, in the aggregate, or by the private sector, of $143.1
million in any one year (2 U.S.C. 1532). Eighty percent of the costs
attributable to this rulemaking are directly reimbursable through
Federal transportation funds allocated for metropolitan planning (23
U.S.C. 104(f) and 49 U.S.C. 5303(h)) and for State planning and
research (23 U.S.C. 505 and 49 U.S.C. 5313).
Additionally, the definition of ``Federal mandate'' in the Unfunded
Mandates Reform Act excludes financial assistance of the type in which
State, local, or tribal governments have authority to adjust their
participation in the program in accordance with changes made in the
program by the Federal Government. The Federal-aid highway program and
Federal Transit Act permit this type of flexibility to the States.
Executive Order 13132 (Federalism)
The FHWA and FTA have analyzed this proposed action in accordance
with the principles and criteria contained in Executive Order 13132 and
have determined that this proposed action would not have sufficient
federalism implications to warrant the preparation of a federalism
assessment. The FHWA and FTA do not believe that this rulemaking will
have substantial, direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
The FHWA and FTA have also determined that this proposed action would
not preempt any State law or regulation or affect the States' ability
to discharge traditional State governmental functions. Comment is
solicited specifically on the federalism implications of this proposal.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Numbers 20.205,
Highway Planning and Construction (or 20.217); 20.500, Federal Transit
Capital Improvement Grants; 20.505, Federal Transit Technical Studies
Grants; 20.507, Federal Transit Capital and Operating Assistance
Formula Grants. The regulations implementing Executive Order 12372
regarding intergovernmental consultation in Federal programs and
activities apply to these programs and were carried out as part of the
outreach on the federalism implications of this rulemaking. This EO
applies because State and local governments would be directly affected
by the proposed regulation, which is a condition on Federal highway
funding. The FHWA and the FTA solicit comments on this issue.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) prior to conducting or sponsoring a
collection of information. The FHWA and FTA have determined that this
proposal contains collections of information for the purposes of the
PRA. The reporting requirements for metropolitan planning unified
planning work programs (UPWPs), transportation plans, and TIPs are
currently approved
[[Page 31807]]
under OMB control number 2132-0529. Separately, FHWA is updating the
information reporting requirements for State planning and research work
programs, which has been approved by the OMB under control number 2125-
0039. These State planning and research work program are governed under
a separate regulation at 23 CFR 420. The FHWA is updating 23 CFR 420
and will be issuing a separate NPRM for it soon. The FTA conducted the
analysis supporting this approval on behalf of both FTA and FHWA, since
the regulations are jointly issued by both agencies. The reporting
requirements for statewide transportation plans and programs are also
approved under this same OMB control number. Because approval for the
FHWA and FTA collection will soon be expiring, both agencies are
seeking renewed approval for its existing collection.
The paragraphs below describe the burden analysis conducted by FHWA
and the FTA for the existing planning requirements in this proposed
regulation which remain unchanged from SAFETEA-LU and were carried over
from the existing regulation. It serves as a baseline burden analysis
(analysis of the burden to implement elements of the existing
regulations which were carried over from the existing regulation into
these proposed regulations without change). It is followed by a
description of the burden analysis for the new (changed) planning
requirements proposed by this NPRM, which resulted from the passage of
MAP-21.
Burden Analysis for the Existing Planning Requirements (Baseline Burden
Analysis)
The Unified Planning Work Program (UPWP) identifies transportation
planning activities in metropolitan areas and supports the request for
funding to support the work under both FTA and FHWA planning programs
in metropolitan areas. A similar listing of planning activities is
prepared on a statewide level as the basis for FTA and FHWA SP&R
funding. The metropolitan plan and statewide plan reflect the long
range goals and objectives determined through the metropolitan and
statewide transportation planning processes respectively and have a 20-
year planning horizon. The TIP and STIP are short-range multiyear
listings (4 years) of highway and transit improvement projects which
are consistent with the metropolitan and statewide plans and which
support the request for, and receipt of, Federal transportation funding
under Title 23 U.S.C. and Chapter 53 of Title 49 U.S.C.
The FTA and FHWA jointly carry out the Federal mandate to improve
metropolitan and statewide transportation under authority of Title 49,
Chapter 53, and Title 23 U.S.C. Sections 5305(g) of Title 49 and 104(f)
of Title 23 authorize funds to support transportation planning at
metropolitan and statewide levels. As a condition to receive Title 49,
Chapter 53, and Title 23 funding, requirements are established for
metropolitan and statewide transportation planning under Sections 5303
and 5304 of Title 49 and Sections 134 and 135 of Title 23 that call for
development of transportation plans and transportation improvement
programs in all States and metropolitan areas. The information
collection activities necessary to prepare federally required plans and
programs, and the supporting planning studies proposed for funding in
UPWPs and under the SP&R work programs are necessary to monitor and
evaluate current and projected usage and performance of transportation
systems nationwide--in each urbanized area and throughout every State.
The metropolitan transportation plan and TIP are required by 49
U.S.C. 5303 and 23 U.S.C. 134, which state that ``metropolitan planning
organizations, in cooperation with the State, shall develop
transportation plans and programs for urbanized areas of the State.''
Sections 49 U.S.C. 5304 and 23 U.S.C. 135 require that each ``State
shall develop a long-range transportation plan and STIP for all areas
of the State.'' Both statutory sections require that ``the process for
developing such plans and programs shall provide for consideration of
all modes of transportation and shall be continuing, cooperative, and
comprehensive.'' The MPOs and States use metropolitan and statewide
plans, TIPs, and STIPs as the basis for investing Federal and non-
Federal capital funds for transportation infrastructure investments.
(Note: Paperwork Reduction Act requirements for preparation of the STIP
are covered by OMB control number 2125-0039.)
Part 450, title 23, Code of Federal Regulations implements these
statutory requirements. (Note: 23 CFR part 450 is identical to, and
cross-referenced by, the equivalent regulation in Title 49, 49 CFR part
613.) The MPO, together with the State and public transportation
operators, prepares plans for each urbanized area, while the State
develops a statewide plan, which, in metropolitan areas, is developed
in cooperation with affected MPOs. These plans form the basis for
development of TIPs and STIPs, the short-range programming documents
for federally funded transportation capital investments.
A UPWP is required by 23 CFR 450.308 for all MPOs in TMAs. The MPOs
in urbanized areas of less than 200,000 population, with prior approval
by the State, FTA, and FHWA, may use a simplified statement of work as
their planning grant application instead of developing a full UPWP.
Details of the required planning processes supported by FTA and FHWA
metropolitan planning funds, as required by Section 5303 of Title 49
U.S.C. and 23 U.S.C. 134, are set out in 23 CFR part 450. The planning
grant application is based upon the UPWP and is the mechanism by which
grantees request Federal funding. The information contained in the UPWP
is necessary to establish the eligibility of the activities for which
funding is being requested.
Preparation of UPWPs, project listing for SP&R funding,
metropolitan and statewide plans, TIPs, and STIPs are essential
components of decisionmaking by State and local officials for planning
and programming Federal transportation dollars to support the priority
transportation investment needs of their areas. In addition to serving
as the grant application by States for FHWA and FTA planning funds in
metropolitan areas, UPWPs are used by FTA and FHWA on a national scale
to establish national out year budgets and regional program plans,
develop policy on using funds, monitor State and local consistency with
national planning and technical emphasis areas, respond to
congressional inquiries, prepare congressional testimony, and ensure
efficiency in the use and expenditure of Federal funds by determining
that planning proposals are reasonable, cost effective, and supportive
of full compliance with all applicable Federal law and regulations.
Sections 5303 and 5304 of 49 U.S.C. and Sections 134 and 135 of 23
U.S.C. require the development of plans and programs in all urbanized
areas and entire States respectively. After approval by the Governor
and MPO, metropolitan TIPs in attainment areas are to be incorporated
directly into the STIP. For nonattainment and maintenance areas, as
required by the Clean Air Act Amendments of 1990, FTA and FHWA must
make a conformity finding on these areas' plans and TIPs before TIPs
are incorporated into STIPs.
The complete STIP is then jointly reviewed and approved (or
disapproved) by FTA and FHWA. With that action comes a joint
determination, or finding, by FTA and FHWA that metropolitan and
statewide planning
[[Page 31808]]
processes are in compliance with all applicable Federal laws and
regulations. These planning ``findings,'' conformity determinations,
and approval actions constitute the determination that State and
metropolitan area transportation planning processes are complying with
Federal law and regulatory requirements as a condition of eligibility
for receiving Federal-aid. Without the supporting documents, these
``findings'' and planning approvals cannot be made as the basis for
making project-level grant awards. Since a STIP/TIP is made up of
various types of capital and non-capital surface transportation
projects, from equipment acquisition to major highway and transitway
construction, it is essential that these projects be identified and
described. Estimated cost--since the STIP/TIP is the basis for
subsequent programming and obligation of both Federal-aid highway and
FTA capital funds, there must be an indication of project cost and
Federal funds required. Source of Federal funds--The STIP/TIP is an
integrated FTA/FHWA program. Because both agencies have several
statutory sources of funds, each with different eligibility
requirements, it is necessary to know what projects are proposed to be
funded from which fund. Identification of the recipient--because the
STIP/TIP is an integrated program of highway and transit improvements,
many potential capital grant recipients have projects included in the
document. For FTA funding, it is necessary that each individual project
be identified as to the likely capital grant applicant. The STIP/TIP
requirement reduces the burden to potential capital grant applicants by
imposing the programming requirements at one point and setting one
response to these requirements.
The SP&R program, UPWP, metropolitan and statewide plan, TIP, and
STIP are adaptable to computer generation and revision. Both FTA and
FHWA have extensive technical assistance programs encouraging
application of computer techniques. These programs reduce burden by
achieving time-savings in technical analysis, report revisions, and
clerical activities through automation.
While the transit and highway funding programs for planning and
project implementation are unique to FTA and FHWA, FTA and FHWA
cooperate to avoid duplication of effort. Most visible is consolidating
FTA and FHWA statutory requirements for planning through the issuance
of joint planning regulations. The MPOs and States prepare a single set
of UPWPs, plans, TIPs, and STIPs to satisfy both FTA and FHWA
requirements.
The information contained in projects proposed for funding under
the SP&R programs, UPWPs, metropolitan and State plans, TIPs, and STIPs
are not contained in any other federally required document. However,
where this information is already contained in State and local planning
documents, FHWA and FTA can accept those documents provided that all
FHWA and FTA requirements are met, thus further reducing any
duplication and unnecessary burden. The SP&R programs, statewide plans,
STIPs, UPWPs, metropolitan plans and TIPs have been submitted to FTA
and FHWA for many years to support funding of the transportation
planning and capital improvement programs for urbanized and non-
urbanized areas. Continuing contact between each of FTA's grantees and
FTA regional staff as well as FHWA's division office staff and State
DOTs and MPOs provides opportunity for grantees to seek changes. No
major problems have developed regarding this requirement. The FHWA and
the FTA have not received a petition to establish, amend, or repeal a
regulation pursuant to 49 CFR 106.31. A 60-day Federal Register Notice
on information collection was published on November 22, 2013 (78 FR
70094), soliciting comments prior to submission to OMB. The DOT
received comments from the Florida Department of Transportation and the
American Association of State Highway and Transportation Officials
(AASHTO). Both expressed concern that many respondents will exceed the
8,017 burden hours per respondent estimated in the Notice of Request
for Revision of an Approved Information Collection. The DOT concurs
that some States and MPOs may exceed the estimated 8,017 average burden
hours to meet the metropolitan and statewide transportation planning
requirements. This is because the burden hour estimate based upon the
average for all MPOs and States.
A 30-day Federal Register notice was published on January 29, 2014
(79 FR 4808).
The following summarizes in tabular form the estimated burden hours
for the collection of information for the purposes of developing and
completing UPWPs, metropolitan and statewide transportation plans, and
TIPs/STIPs and an explanation of the methodology used to calculate the
number of hours required per submission.
Unified Planning Work Programs (UPWPs)--Current Regulation
----------------------------------------------------------------------------------------------------------------
Total annual
Urbanized area (UZA) population Total number of Burden annual hours per Burden hours
entities submissions submission
----------------------------------------------------------------------------------------------------------------
Under 200,000........................... 210 210 200 63,000
Over 200,000............................ 210 210 300 42,000
-----------------------------------------------------------------------
Total............................... 420 420 ................ 105,000
----------------------------------------------------------------------------------------------------------------
Transportation Improvement Programs (TIPs and STIPs)--Current Regulation
----------------------------------------------------------------------------------------------------------------
Number of Average annual Burden hours Total annual
Entity entities submissions per submission burden hours
----------------------------------------------------------------------------------------------------------------
MPOs in Attainment Areas................ 181 45 8,135 366,066
MPOs in Nonattainment and Maintenance 239 60 11,330 679,837
Areas..................................
State DOTs.............................. 52 13 17,868 232,284
-----------------------------------------------------------------------
Total............................... 472 118 ................ 1,278,187
----------------------------------------------------------------------------------------------------------------
[[Page 31809]]
Transportation Plans--Current Regulation
----------------------------------------------------------------------------------------------------------------
Number of Average annual Burden hours Total annual
Entity entities submissions per submission burden hours
----------------------------------------------------------------------------------------------------------------
MPOs in Attainment Areas................ 181 36 19,503 702,092
MPOs in Nonattainment or Maintenance 239 60 21,731 1,303,885
Areas..................................
State DOTs.............................. 52 13 30,068 390,881
-----------------------------------------------------------------------
Total............................... 472 109 ................ 2,396,858
----------------------------------------------------------------------------------------------------------------
The respondent's cost is the cost of the MPOs' and State agencies'
staff time required to compile and produce the UPWP. The UPWPs must be
developed identifying work activities over the next 1- or 2-year
period. Given the complex nature of the planning requirements, we
estimate that an average of 300 hours per respondent will be required
by MPOs to prepare UPWPs in TMAs and 200 hours per respondent in non-
TMAs. Note that although 23 CFR 450.308 allows MPOs in the 210 non-TMAs
to prepare simplified statements of work, FTA and FHWA know of no MPOs
that are developing such simplified statements. Using a staff salary of
$31.62 (based on annual staff salary of $65,760) per hour total
respondent cost is estimated at $3,320,100. Assuming a 54 percent
overhead rate, the total annualized cost with overhead is estimated to
be $5,112,954.
The OMB has previously approved the burden on respondents to
develop State (SPR) work programs under FHWA control number 2125-0039.
Metropolitan TIPs are prepared by MPOs in cooperation with the
State and local public transportation operators. The TIPs are required
every 4 years; plans in nonattainment and maintenance areas must be
updated and submitted to FTA/FHWA every 4 years and in attainment areas
every 5 years. Although the requirements for metropolitan TIPs and
plans, particularly in nonattainment and maintenance areas, are
complex, current burden estimates have been generated from past
experiences, informal discussion with both FTA/FHWA field staff and
respondents, and a comparison of recent trends in the allocation of
resources by respondents to meet the requirements. We estimate that
MPOs in attainment areas will spend approximately 8,135 person hours in
the development of the TIP document. Furthermore, considering the more
stringent requirements relating to the implementation of Transportation
Control Measures in nonattainment and maintenance areas and the fact
that most of these areas are in the Nation's largest metropolitan areas
with the most projects to program, we estimate that an average of
11,330 person hours per submission are required for these TIPs.
The development by States of a STIP draws heavily on the work
cooperatively done by MPOs and States in the preparation of
metropolitan TIPs. This work burden has already been calculated in this
section; however, to the extent that STIPs must reflect the programming
of transportation projects in nonmetropolitan areas, there exists some
marginal burden in the development of the overall statewide program. We
estimate that burden at 17,868 person hours is required for each STIP.
Total respondent burden hours for the TIP/STIP development is
estimated to be 1,278,187. Total respondent cost for TIP/STIP
development without overhead is estimated to be $40,416,518. Total
respondent cost for TIP/STIP development assuming a 54 percent overhead
rate is estimated to be $62,241,438. The Joint Planning Regulations
require that plans in nonattainment and maintenance areas be updated
and submitted to FTA/FHWA every 4 years and that plans in attainment
areas be updated every 5 years. The development by States of a
statewide plan draws heavily on the work cooperatively done by MPOs and
States in the preparation of metropolitan TIPs and plans. This work
burden has already been calculated in this section; however, to the
extent that statewide plans must reflect the planning of transportation
projects in nonmetropolitan areas, there exists some marginal burden in
the development of the overall plan. We estimate that burden at 21,731
person hours are required for the preparation of the plan in a non-
attainment area. These plans are updated every 4 years. We estimate
that burden at 19,503 person hours are required for the preparation of
the plan in an attainment area. These plans are updated every 5 years.
Assuming an average rate of $31.62/hour we estimate that the respondent
cost for the metropolitan plan is $63,428,993 and for the statewide
plan is $12,359,657.
Total respondent burden hours for the plan development by States
and MPOs is estimated to be 2,396,858. Total respondent cost for plan
development without overhead is estimated to be $75,788,650. Total
respondent cost for plan development assuming a 54 percent overhead
rate is estimated to be $116,714,521.
There are no capital or start-up costs associated directly with the
collection of information required by the UPWPs, TIPs/STIPs, and plans.
Any capital equipment used to provide this information in most cases
would have been purchased to carry out general transportation and air
quality planning activities. The total annual overhead (operation and
maintenance costs) of providing the requested information is
$64,459,978 as calculated in the table below:
Total Annual Burden Costs to the MPOs and the States
------------------------------------------------------------------------
Total costs
Task Total costs without
with overhead overhead
------------------------------------------------------------------------
UPWP.................................... $5,112,954 $3,320,100
TIP..................................... 50,925,017 33,071,100
Metropolitan Plans...................... 97,671,020 63,428,993
STIPs................................... 11,309,908 7,344,820
Statewide Plans......................... 19,031,996 12,359,657
-------------------------------
[[Page 31810]]
Total............................... 184,050,895 119,525,023
------------------------------------------------------------------------
Total Annual Burden Hours to the MPOs and the States
------------------------------------------------------------------------
Total burden
Task hours
------------------------------------------------------------------------
UPWP.................................................... 105,000
TIP..................................................... 1,045,892
Metropolitan Plans...................................... 2,005,977
STIPs................................................... 232,284
Statewide Plans......................................... 390,881
---------------
Total............................................... 3,780,045
------------------------------------------------------------------------
Please note that each State DOT also submits a statewide planning
and research work program, which serves as the basis of the State's
application for Federal financial assistance for planning and research
activities. The information collection requirements of the State
planning and research work program have been previously approved by OMB
under FHWA control number 2125-0039.
This justification includes estimates of burden hours and costs to
complete the major planning products required by the Statewide and
Nonmetropolitan Transportation Planning and Metropolitan Transportation
Planning regulations that are significantly different than the
estimates provided in the previous four information collection
justifications submitted to OMB. The estimates included in this
justification reflect the baseline estimates of burden hours and costs
developed for the Regulatory Impact Analysis (RIA) prepared as part of
this Joint NPRM for the Metropolitan Transportation Planning Program
and the Statewide and Nonmetropolitan Planning Program to implement
provisions of MAP-21. To develop the baseline for the RIA, FHWA and FTA
estimated the current average costs for specific MPO planning functions
on the basis of costs identified through a sample of MPO annual work
programs. The FHWA and FTA sampled a total of 17 TMAs and 12 non-TMA
MPOs and used this sample to calculate costs for States and MPOs.
Historically, FTA and FHWA have used an estimation methodology, not
based on sampling, to estimate the burden hours required of MPOs and
States to meet the planning requirements. This methodology assumed very
limited increase in the costs of developing the planning products.
Additional Burden Hours Associated With These Proposed Rules
The FHWA and FTA conducted an analysis of the additional annual
burden hours of work for the States, MPOs, and providers of public
transportation that are associated with their implementation of the
proposed changes to the planning process. The proposed changes to the
planning process that impact the average annual burden hours of effort
include: A transition to a performance-based (statewide and
metropolitan) planning and programming process, cooperation by the
State with local officials or RTPOs, if applicable, when conducting the
statewide transportation planning process, and including representation
by providers of public transportation on MPOs that serve TMAs. The FHWA
and the FTA assumed that this additional work will increase the annual
cost of preparing a long-range transportation plan and STIP/TIP by the
State, the MPOs, and the providers of public transportation by 15
percent, on average. These burden hours of effort were calculated using
the same labor wage rates and overhead rates that were used in the
baseline paperwork reduction act analysis.
Summary of Average Annual Regulatory Costs and Burden Hours of Effort Resulting From the Changes Proposed in
This Rule
----------------------------------------------------------------------------------------------------------------
Average
Total Non-Federal additional
Entity additional cost share (20%) person hours per
agency
----------------------------------------------------------------------------------------------------------------
TMA MPOs (210)............................................ $18,402,300 $3,680,500 1,800
Non-TMA MPOs (210)........................................ 3,909,200 781,800 400
States (52)............................................... 6,075,800 1,215,200 2,400
Providers of Public Transportation (600).................. 2,440,000 488,000 100
-----------------------------------------------------
Total................................................. 30,827,300 6,165,500 ................
----------------------------------------------------------------------------------------------------------------
As shown in the above table, the proposed changes to the rule would
have a total estimated cost increase of $30,827,300 per year for the
States, MPOs, and providers of public transportation. When converted to
burden hours, that equates to an additional 1,800 hours of annual
burden for each TMA MPO, 400 additional hours of annual burden hours
for each non TMA-MPO, 2,400 annual burden hours for each State, and 100
annual burden hours for each provider of public transportation.
FHWA and FTA Seek Public Comments on the Information Collection
Associated With These Proposed Rules
Public Comments Invited: You are asked to comment on any aspect of
this information collection, including: (1) Whether the proposed
collection is necessary for the DOT's performance; (2) the accuracy of
the estimated burdens; (3) ways for the DOT to enhance the quality,
usefulness, and clarity of the collected information; and (4) ways that
the burden could be minimized, including the use of electronic
technology, without reducing the quality of the collected information.
The agency will summarize and/or include your comments in the request
for OMB's clearance of this information collection.
[[Page 31811]]
National Environmental Policy Act
Federal agencies are required to adopt implementing procedures for
NEPA that establish specific criteria for, and identification of, three
classes of actions: those that normally require preparation of an
Environmental Impact Statement, those that normally require preparation
of an Environmental Assessment, and those that are categorically
excluded from further NEPA review (40 CFR 1507.3(b)). This proposed
action qualifies for categorical exclusions under 23 CFR 771.117(c)(20)
(promulgation of rules, regulations, and directives) and 771.117(c)(1)
(activities that do not lead directly to construction) for FHWA, and 23
CFR 771.118(c)(4) (planning and administrative activities which do not
involve or lead directly to construction) for FTA. The Agencies have
evaluated whether the proposed action would involve unusual
circumstances or extraordinary circumstances and have determined that
this proposed action would not involve such circumstances.
The proposed rule provides the policies and requirements for
statewide and metropolitan transportation plans and transportation
improvement programs. The proposed rule follows closely the
requirements in 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304. In
addition, sections 134(q), 135(k), and 168(f)(1) of title 23, U.S.C.,
and sections 5303(q) and 5304(j) of title 49, U.S.C., establish that
NEPA does not apply to decisions by the Secretary concerning a
metropolitan or statewide transportation plan or transportation
improvement programs under those sections.
Executive Order 11988 (Floodplain Management)
The FHWA and FTA have evaluated this action under Executive Order
11988, Floodplain Management. The agencies have determined that this
action does not have an adverse impact associated with the occupancy
and modification of floodplains and does not provide direct or indirect
support of floodplain development. These proposed regulations do
provide the State DOTs and the MPOs with the option of developing a
programmatic mitigation plan as part of the transportation planning
process, and floodplains could be one of the resources evaluated as
part of these programmatic mitigation plans to help the States and MPOs
avoid or minimize impacts to flood plains by future projects. These
proposed regulations also encourage early coordination by State DOTs
and MPOs with Federal and State environmental resource agencies during
the planning process to identify environmental resources in the
interest of avoiding or minimizing impacts. When FHWA and FTA make a
future funding or other approval decision on a project basis, they
consider floodplain management at that point.
Executive Order 13653 (Climate Preparedness and Resilience)
The FHWA and FTA have evaluated this action under Executive Order
13653, Climate Preparedness and Resilience. The FHWA and FTA have
determined that this proposed rule provides an optional means where
State DOTs and MPOs could consider the effects of climate change and
resilience in the context of the transportation planning process, such
as during the development of statewide or metropolitan transportation
plans. Scenario planning, which is discussed in these regulations as an
optional tool for aiding MPOs in their development of the metropolitan
transportation plan, is another option where MPOs could consider
climate change and resilience as part of scenarios evaluated during the
development of the metropolitan transportation plan. The FHWA and FTA
have determined that these proposed regulations, if finalized as
proposed, could provide an optional means for States and MPOs to assess
climate change and resilience as part of the transportation planning
process.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and does not
concern an environmental risk to health or safety that may
disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Executive Order 13175 (Tribal Consultation)
The FHWA and FTA have analyzed this action under Executive Order
13175, dated November 6, 2000, and believe that the proposed action
would not have substantial direct effects on one or more Indian tribes,
would not impose substantial direct compliance costs on Indian tribal
governments, and would not preempt tribal laws. The planning
regulations contain requirements for States to consult with Indian
tribal governments in the planning process. Tribes are required under
25 CFR part 170 to develop long-range plans and develop an Indian
Tribal Transportation Program (TTP) for programming TTP projects.
However, the requirements in 25 CFR part 170 would not be changed by
this rulemaking. Therefore, a tribal summary impact statement is not
required.
Executive Order 13211 (Energy Effects)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use dated May 18, 2001. We have determined that it is
not a significant energy action under that order because, although it
is a significant regulatory action under Executive Order 12866, it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects is not required.
Executive Order 5610.2(a) (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a), 91 FR 27534 (May 10, 2012) (available online at http://www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm) require DOT agencies to achieve environmental
justice (EJ) as part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects, including interrelated social and economic
effects, of their programs, policies, and activities on minority
populations and low-income populations in the United States. The DOT
Order requires DOT agencies to address compliance with the Executive
Order 12898 and the DOT Order in all rulemaking activities. In
addition, FHWA and FTA have issued additional documents relating to
administration of the Executive Order
[[Page 31812]]
12898 and the DOT Order. On June 14, 2012, FHWA issued an update to its
EJ order, FHWA Order 6640.23A, FHWA Actions to Address Environmental
Justice in Minority Populations and Low Income Populations (the FHWA
Order) (available online at http://www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). On August 15, 2012, FTA's Circular
4703.1 became effective, which contains guidance for States and MPOs to
incorporate EJ into their planning processes (available online at
http://www.fta.dot.gov/documents/FTA_EJ_Circular_7.14-12_FINAL.pdf).
The FHWA and FTA have evaluated this proposed rule under the
Executive Order, the DOT Order, the FHWA Order, and the FTA Circular.
Environmental justice principles, in the context of planning, should be
considered when the planning process is being implemented at the State
and local level. As part of their stewardship and oversight of the
federally aided transportation planning process of the States, transit
agencies, and MPOs, FHWA and FTA encourage these entities to
incorporate EJ principles into the statewide and metropolitan planning
processes and documents as appropriate consistent with the applicable
Orders and the FTA Circular. When FHWA and FTA make a future funding or
other approval decision on a project basis, they consider EJ at that
point.
Nothing inherent in these proposed regulations would
disproportionately impact minority or low income populations. The
proposed regulations would establish procedures and other requirements
to guide future State and local decisionmaking on programs and
projects. Neither the regulations nor Sections 134 and 135 of title 23
dictate the outcome of those decisions. The FHWA and FTA have
determined that these proposed regulations, if finalized as proposed,
would not cause disproportionately high and adverse human health and
environmental effects on minority or low income populations.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects
23 CFR Part 450
Grant programs--transportation, Highway and roads, Mass
transportation, Reporting and record keeping requirements.
49 CFR Part 613
Grant programs--transportation, Highways and roads, Mass
transportation.
Issued in Washington, DC, on May 21, 2014, under authority
delegated in 49 CFR 1.85 and 1.91.
Gregory G. Nadeau,
Deputy Administrator, Federal Highway Administration.
Therese W. McMillan,
Deputy Administrator, Federal Transit Administration.
In consideration of the foregoing, the FHWA and FTA propose to
amend title 23, Code of Federal Regulations, part 450, and title 49,
Code of Federal Regulations, part 613, as set forth below:
TITLE 23--HIGHWAYS
0
1. Revise part 450 to read as follows:
PART 450--PLANNING ASSISTANCE AND STANDARDS
Subpart A--Transportation Planning and Programming Definitions
Sec.
450.100 Purpose.
450.102 Applicability.
450.104 Definitions.
Subpart B--Statewide and Nonmetropolitan Transportation Planning and
Programming
450.200 Purpose.
450.202 Applicability.
450.204 Definitions.
450.206 Scope of the statewide and nonmetropolitan transportation
planning process.
450.208 Coordination of planning process activities.
450.210 Interested parties, public involvement, and consultation.
450.212 Transportation planning studies and project development.
450.214 Development of programmatic mitigation plans.
450.216 Development and content of the long-range statewide
transportation plan.
450.218 Development and content of the statewide transportation
improvement program (STIP).
450.220 Self-certifications, Federal findings, and Federal
approvals.
450.222 Project selection from the STIP.
450.224 Applicability of NEPA to statewide transportation plans and
programs.
450.226 Phase-in of new requirements.
Subpart C--Metropolitan Transportation Planning and Programming
450.300 Purpose.
450.302 Applicability.
450.304 Definitions.
450.306 Scope of the metropolitan transportation planning process.
450.308 Funding for transportation planning and unified planning
work programs.
450.310 Metropolitan planning organization designation and
redesignation.
450.312 Metropolitan planning area boundaries.
450.314 Metropolitan planning agreements.
450.316 Interested parties, participation, and consultation.
450.318 Transportation planning studies and project development.
450.320 Development of programmatic mitigation plans.
450.322 Congestion management process in transportation management
areas.
450.324 Development and content of the metropolitan transportation
plan.
450.326 Development and content of the transportation improvement
program (TIP).
450.328 TIP revisions and relationship to the STIP.
450.330 TIP action by the FHWA and the FTA.
450.332 Project selection from the TIP.
450.334 Annual listing of obligated projects.
450.336 Self-certifications and Federal certifications.
450.338 Applicability of NEPA to metropolitan transportation plans
and programs.
450.340 Phase-in of new requirements.
Appendix A to Part 450--Linking the Transportation Planning and NEPA
Processes
Authority: 23 U.S.C. 134 and 135; 42 U.S.C. 7410 et seq.; 49
U.S.C. 5303 and 5304; 49 CFR 1.85 and 1.90.
Subpart A--Transportation Planning and Programming Definitions
Sec. 450.100 Purpose.
The purpose of this subpart is to provide definitions for terms
used in this part.
Sec. 450.102 Applicability.
The definitions in this subpart are applicable to this part, except
as otherwise provided.
Sec. 450.104 Definitions.
Unless otherwise specified, the definitions in 23 U.S.C. 101(a) and
49 U.S.C. 5302 are applicable to this part.
Administrative modification means a minor revision to a long-range
statewide or metropolitan transportation plan, Transportation
Improvement Program (TIP), or Statewide Transportation Improvement
Program (STIP) that includes minor changes to project/project phase
costs, minor changes to funding sources of previously included
projects, and minor changes to project/project phase initiation dates.
An administrative modification is a revision
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that does not require public review and comment, a redemonstration of
fiscal constraint, or a conformity determination (in nonattainment and
maintenance areas).
Amendment means a revision to a long-range statewide or
metropolitan transportation plan, TIP, or STIP that involves a major
change to a project included in a metropolitan transportation plan,
TIP, or STIP, including the addition or deletion of a project or a
major change in project cost, project/project phase initiation dates,
or a major change in design concept or design scope (e.g., changing
project termini or the number of through traffic lanes or changing the
number of stations in the case of fixed guideway transit projects).
Changes to projects that are included only for illustrative purposes do
not require an amendment. An amendment is a revision that requires
public review and comment and a redemonstration of fiscal constraint.
If an amendment involves ``non-exempt'' projects in nonattainment and
maintenance areas, a conformity determination is required.
Asset management means a strategic and systematic process of
operating, maintaining, and improving physical assets, with a focus on
both engineering and economic analysis based upon quality information,
to identify a structured sequence of maintenance, preservation, repair,
rehabilitation, and replacement actions that will achieve and sustain a
desired state of good repair over the lifecycle of the assets at
minimum practicable cost.
Attainment area means any geographic area in which levels of a
given criteria air pollutant (e.g., ozone, carbon monoxide,
PM10, PM2.5, and nitrogen dioxide) meet the
health-based National Ambient Air Quality Standards (NAAQS) for that
pollutant. An area may be an attainment area for one pollutant and a
nonattainment area for others. A ``maintenance area'' (see definition
below) is not considered an attainment area for transportation planning
purposes.
Available funds means funds derived from an existing source
dedicated to or historically used for transportation purposes. For
Federal funds, authorized and/or appropriated funds and the
extrapolation of formula and discretionary funds at historic rates of
increase are considered ``available.'' A similar approach may be used
for State and local funds that are dedicated to or historically used
for transportation purposes.
Committed funds means funds that have been dedicated or obligated
for transportation purposes. For State funds that are not dedicated to
transportation purposes, only those funds over which the Governor has
control may be considered ``committed.'' Approval of a TIP by the
Governor is considered a commitment of those funds over which the
Governor has control. For local or private sources of funds not
dedicated to or historically used for transportation purposes
(including donations of property), a commitment in writing (e.g.,
letter of intent) by the responsible official or body having control of
the funds may be considered a commitment. For projects involving 49
U.S.C. 5309 funding, execution of a Full Funding Grant Agreement (or
equivalent) or an Expedited Grant Agreement (or equivalent) with the
DOT shall be considered a multiyear commitment of Federal funds.
Conformity means a Clean Air Act (42 U.S.C. 7506(c)) requirement
that ensures that Federal funding and approval are given to
transportation plans, programs and projects that are consistent with
the air quality goals established by a State Implementation Plan (SIP).
Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the NAAQS or any required
interim emission reductions or other milestones in any area. The
transportation conformity regulations (40 CFR part 93, subpart A) sets
forth policy, criteria, and procedures for demonstrating and assuring
conformity of transportation activities.
Conformity lapse means, pursuant to section 176(c) of the Clean Air
Act (42 U.S.C. 7506(c)), as amended, that the conformity determination
for a metropolitan transportation plan or TIP has expired and thus
there is no currently conforming metropolitan transportation plan or
TIP.
Congestion Management Process means a systematic approach required
in transportation management areas (TMAs) that provides for effective
management and operation, based on a cooperatively developed and
implemented metropolitan-wide strategy, of new and existing
transportation facilities eligible for funding under title 23 U.S.C.,
and title 49 U.S.C., through the use of travel demand reduction and
operational management strategies.
Consideration means that one or more parties takes into account the
opinions, action, consequences, and relevant information from other
parties in making a decision or determining a course of action.
Consultation means that one or more parties confer with other
identified parties in accordance with an established process and, prior
to taking action(s), considers the views of the other parties and
periodically informs them about action(s) taken. This definition does
not apply to the ``consultation'' performed by the States and the
Metropolitan Planning Organizations (MPOs) in comparing the long-range
statewide transportation plan and the metropolitan transportation plan,
respectively, to State and tribal conservation plans or maps or
inventories of natural or historic resources (see Sec. 450.216(j) and
Sec. 450.324(g)(1) and (g)(2)).
Cooperation means that the parties involved in carrying out the
transportation planning and programming processes work together to
achieve a common goal or objective.
Coordinated public transit-human services transportation plan means
a locally developed, coordinated transportation plan that identifies
the transportation needs of individuals with disabilities, older
adults, and people with low incomes, provides strategies for meeting
those local needs, and prioritizes transportation services for funding
and implementation.
Coordination means the cooperative development of plans, programs,
and schedules among agencies and entities with legal standing and
adjustment of such plans, programs, and schedules to achieve general
consistency, as appropriate.
Design concept means the type of facility identified for a
transportation improvement project (e.g., freeway, expressway, arterial
highway, grade-separated highway, toll road, reserved right-of-way rail
transit, mixed-traffic rail transit, or busway).
Design scope means the aspects that will affect the proposed
facility's impact on the region, usually as they relate to vehicle or
person carrying capacity and control (e.g., number of lanes or tracks
to be constructed or added, length of project, signalization, safety
features, access control including approximate number and location of
interchanges, or preferential treatment for high-occupancy vehicles).
Designated recipient means an entity designated, in accordance with
the planning process under 49 U.S.C. 5303 and 5304, by the Governor of
a State, responsible local officials, and publicly owned operators of
public transportation, to receive and apportion amounts under 49 U.S.C.
5336 that are attributable to urbanized areas of 200,000 or more in
population, or a State or regional authority if the authority is
responsible under the laws of a State for a capital project and for
[[Page 31814]]
financing and directly providing public transportation.
Environmental mitigation activities means strategies, policies,
programs, and actions that, over time, will serve to avoid, minimize,
rectify, reduce or eliminate impacts to environmental resources
associated with the implementation of a long-range statewide
transportation plan or metropolitan transportation plan.
Expedited Grant Agreement (EGA) means a contract that defines the
scope of a Small Starts project, the Federal financial contribution,
and other terms and conditions, in accordance with 49 U.S.C.
5309(h)(7).
Federal land management agency means units of the Federal
Government currently responsible for the administration of public lands
(e.g., U.S. Forest Service, U.S. Fish and Wildlife Service, Bureau of
Land Management, and the National Park Service).
Federally funded non-emergency transportation services means
transportation services provided to the general public, including those
with special transport needs, by public transit, private non-profit
service providers, and private third-party contractors to public
agencies.
Financial plan means documentation required to be included with a
metropolitan transportation plan and TIP (and optional for the long-
range statewide transportation plan and STIP) that demonstrates the
consistency between reasonably available and projected sources of
Federal, State, local, and private revenues and the costs of
implementing proposed transportation system improvements.
Financially constrained or Fiscal constraint means that the
metropolitan transportation plan, TIP, and STIP includes sufficient
financial information for demonstrating that projects in the
metropolitan transportation plan, TIP, and STIP can be implemented
using committed, available, or reasonably available revenue sources,
with reasonable assurance that the federally supported transportation
system is being adequately operated and maintained. For the TIP and the
STIP, financial constraint/fiscal constraint applies to each program
year. Additionally, projects in air quality nonattainment and
maintenance areas can be included in the first 2 years of the TIP and
STIP only if funds are ``available'' or ``committed.''
Freight shippers means any entity that routinely transport cargo
from one location to another by providers of freight transportation
services or by their own operations, involving one or more travel
modes.
Full Funding Grant Agreement (FFGA) means an instrument that
defines the scope of a project, the Federal financial contribution, and
other terms and conditions for funding New Starts projects as required
by 49 U.S.C. 5309(k)(2).
Governor means the Governor of any of the 50 States or the
Commonwealth of Puerto Rico or the Mayor of the District of Columbia.
Highway Safety Improvement Program (HSIP) means a State safety
program to implement the provisions of 23 U.S.C. 130 and 148, including
the development of a Strategic Highway Safety Plan (SHSP), Railway-
Highway Crossings Program and program of highway safety improvement
projects.
Illustrative project means an additional transportation project
that may be included in a financial plan for a metropolitan
transportation plan, TIP, or STIP if reasonable additional resources
were to become available.
Indian Tribal government means a duly formed governing body for an
Indian or Alaska Native tribe, band, nation, pueblo, village, or
community that the Secretary of the Interior acknowledges to exist as
an Indian Tribe pursuant to the Federally Recognized Indian Tribe List
Act of 1994, Public Law 103-454.
Intelligent Transportation System (ITS) means electronics,
photonics, communications, or information processing used singly or in
combination to improve the efficiency or safety of a surface
transportation system.
Interim metropolitan transportation plan means a transportation
plan composed of projects eligible to proceed under a conformity lapse
and otherwise meeting all other applicable provisions of this part,
including approval by the MPO.
Interim Transportation Improvement Program (TIP) means a TIP
composed of projects eligible to proceed under a conformity lapse and
otherwise meeting all other applicable provisions of this part,
including approval by the MPO and the Governor.
Local official means elected or appointed officials of general
purpose local government with responsibility for transportation.
Long-range statewide transportation plan means the official,
statewide, multimodal, transportation plan covering a period of no less
than 20 years developed through the statewide transportation planning
process.
Maintenance area means any geographic region of the United States
that the Environmental Protection Agency (EPA) previously designated as
a nonattainment area for one or more pollutants pursuant to the Clean
Air Act Amendments of 1990, and subsequently redesignated as an
attainment area subject to the requirement to develop a maintenance
plan under section 175A of the Clean Air Act, as amended (42 U.S.C.
7505a).
Major modes of transportation means those forms of transportation
administered, managed, owned, or operated by public agencies or
authorities that provide transportation services open to the public for
the movement of people and goods or as operated by the private sector
on behalf of a public agency owned facility.
Management system means a systematic process, designed to assist
decision makers in selecting cost effective strategies/actions to
improve the efficiency or safety of, and protect the investment in the
nation's infrastructure. A management system can include:
identification of performance measures; data collection and analysis;
determination of needs; evaluation and selection of appropriate
strategies/actions to address the needs; and evaluation of the
effectiveness of the implemented strategies/actions.
Metropolitan Planning Agreement means a written agreement between
the MPO, the State(s), and the providers of public transportation
serving the metropolitan planning area that describes how they will
work cooperatively to meet their mutual responsibilities in carrying
out the metropolitan transportation planning process.
Metropolitan Planning Area (MPA) means the geographic area
determined by agreement between the MPO for the area and the Governor,
in which the metropolitan transportation planning process is carried
out.
Metropolitan Planning Organization (MPO) means the policy board of
an organization created and designated to carry out the metropolitan
transportation planning process.
Metropolitan Transportation Plan means the official multimodal
transportation plan addressing no less than a 20-year planning horizon
that the MPO develops, adopts, and updates through the metropolitan
transportation planning process.
National Ambient Air Quality Standard (NAAQS) means those standards
established pursuant to section 109 of the Clean Air Act (42 U.S.C.
7409).
Nonattainment area means any geographic region of the United States
that EPA designates as a nonattainment area under section 107 of the
Clean Air
[[Page 31815]]
Act (42 U.S.C. 7407) for any pollutants for which an NAAQS exists.
Nonmetropolitan area means a geographic area outside a designated
metropolitan planning area.
Nonmetropolitan local officials means elected and appointed
officials of general purpose local government in a nonmetropolitan area
with responsibility for transportation.
Obligated projects means strategies and projects funded under title
23 U.S.C. and title 49 U.S.C. Chapter 53 for which the State or
designated recipient authorized and committed the supporting Federal
funds in preceding or current program years, and authorized by the FHWA
or awarded as a grant by the FTA.
Operational and management strategies means actions and strategies
aimed at improving the performance of existing and planned
transportation facilities to relieve congestion and maximize the safety
and mobility of people and goods.
Performance measure is as defined in 23 CFR 490.XXX and 49 CFR
XXX.XXX.
Performance metric is as defined in 23 CFR 490.XXX and 49 CFR
XXX.XXX.
Performance target is as defined in 23 CFR 490.XXX and 49 CFR
XXX.XXX.
Project selection means the procedures followed by MPOs, States,
and public transportation operators to advance projects from the first
4 years of an approved TIP and/or STIP to implementation, in accordance
with agreed upon procedures.
Provider of freight transportation services means any entity that
transports or otherwise facilitates the movement of cargo from one
location to another for others or for itself.
Public transportation agency safety plan means a comprehensive plan
established by a State or recipient of funds under title 49, chapter 53
and in accordance with 49 U.S.C. 5329(d).
Public transportation operator means the public entity or
government-approved authority that participates in the continuing,
cooperative, and comprehensive transportation planning process in
accordance with 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304, and
is a recipient of Federal funds under title 49 U.S.C. Chapter 53 for
transportation by a conveyance that provides regular and continuing
general or special transportation to the public, but does not include
sightseeing, school bus, charter, certain types of shuttle service,
intercity bus transportation, or intercity passenger rail
transportation provided by Amtrak.
Regional ITS architecture means a regional framework for ensuring
institutional agreement and technical integration for the
implementation of ITS projects or groups of projects.
Regionally significant project means a transportation project
(other than projects that may be grouped in the TIP and/or STIP or
exempt projects as defined in EPA's transportation conformity
regulations (40 CFR part 93, subpart A) that is on a facility that
serves regional transportation needs (such as access to and from the
area outside the region; major activity centers in the region; major
planned developments such as new retail malls, sports complexes, or
employment centers; or transportation terminals) and would normally be
included in the modeling of the metropolitan area's transportation
network. At a minimum, this includes all principal arterial highways
and all fixed guideway transit facilities that offer an alternative to
regional highway travel.
Regional Transportation Planning Organization (RTPO) means a policy
board of nonmetropolitan local officials or their designees created to
carry out the regional transportation planning process.
Revision means a change to a long-range statewide or metropolitan
transportation plan, TIP, or STIP that occurs between scheduled
periodic updates. A major revision is an ``amendment'' while a minor
revision is an ``administrative modification.''
Scenario planning means a planning process that evaluates the
effects of alternative policies, plans and/or programs on the future of
a community or region. This activity should provide information to
decision makers as they develop the transportation plan.
State means any one of the 50 States, the District of Columbia, or
Puerto Rico.
State Implementation Plan (SIP) means, as defined in section 302(q)
of the Clean Air Act (CAA) (42 U.S.C. 7602(q)), the portion (or
portions) of the implementation plan, or most recent revision thereof,
which has been approved under section 110 of the CAA (42 U.S.C. 7410),
or promulgated under section 110(c) of the CAA (42 U.S.C. 7410(c)), or
promulgated or approved pursuant to regulations promulgated under
section 301(d) of the CAA (42 U.S.C. 7601(d)) and which implements the
relevant requirements of the CAA.
Statewide Transportation Improvement Program (STIP) means a
statewide prioritized listing/program of transportation projects
covering a period of 4 years that is consistent with the long-range
statewide transportation plan, metropolitan transportation plans, and
TIPs, and required for projects to be eligible for funding under title
23 U.S.C. and title 49 U.S.C. Chapter 53.
Strategic Highway Safety Plan means a comprehensive
multidisciplinary plan, based on safety data developed by a State DOT
in accordance with the requirements of 23 U.S.C. 148.
Transit Asset Management Plan is as defined in 49 CFR XXX.XXX.
Transit Asset Management System is as defined in 49 CFR XXX.XXX.
Transportation Control Measure (TCM) means any measure that is
specifically identified and committed to in the applicable SIP,
including a substitute or additional TCM that is incorporated into the
applicable SIP through the process established in CAA section
176(c)(8), that is either one of the types listed in section 108 of the
CAA (42 U.S.C. 7408) or any other measure for the purpose of reducing
emissions or concentrations of air pollutants from transportation
sources by reducing vehicle use or changing traffic flow or congestion
conditions. Notwithstanding the above, vehicle technology-based, fuel-
based, and maintenance-based measures that control the emissions from
vehicles under fixed traffic conditions are not TCMs.
Transportation Improvement Program (TIP) means a prioritized
listing/program of transportation projects covering a period of 4 years
that is developed and formally adopted by an MPO as part of the
metropolitan transportation planning process, consistent with the
metropolitan transportation plan, and required for projects to be
eligible for funding under title 23 U.S.C. and title 49 U.S.C. Chapter
53.
Transportation Management Area (TMA) means an urbanized area with a
population over 200,000, as defined by the Bureau of the Census and
designated by the Secretary of Transportation, or any additional area
where TMA designation is requested by the Governor and the MPO and
designated by the Secretary of Transportation.
Unified Planning Work Program (UPWP) means a statement of work
identifying the planning priorities and activities to be carried out
within a metropolitan planning area. At a minimum, a UPWP includes a
description of the planning work and resulting products, who will
perform the work, time frames for completing the work, the cost of the
work, and the source(s) of funds.
Update means making current a long-range statewide transportation
plan, metropolitan transportation plan, TIP, or STIP through a
comprehensive review. Updates require public review and comment, a 20-
year horizon for metropolitan transportation plans and
[[Page 31816]]
long-range statewide transportation plans, a 4-year program period for
TIPs and STIPs, demonstration of fiscal constraint (except for long-
range statewide transportation plans), and a conformity determination
(for metropolitan transportation plans and TIPs in nonattainment and
maintenance areas).
Urbanized area (UZA) means a geographic area with a population of
50,000 or more, as designated by the Bureau of the Census.
Users of public transportation means any person, or groups
representing such persons, who use transportation open to the general
public, other than taxis and other privately funded and operated
vehicles.
Visualization techniques means methods used by States and MPOs in
the development of transportation plans and programs with the public,
elected and appointed officials, and other stakeholders in a clear and
easily accessible format such as GIS- or web-based surveys,
inventories, maps, pictures, and/or displays identifying features such
as roadway rights of way, transit, intermodal, and non-motorized
transportation facilities, historic and cultural resources, natural
resources, and environmentally sensitive areas, to promote improved
understanding of existing or proposed transportation plans and
programs.
Subpart B--Statewide and Nonmetropolitan Transportation Planning
and Programming
Sec. 450.200 Purpose.
The purpose of this subpart is to implement the provisions of 23
U.S.C. 135, 23 U.S.C. 150, and 49 U.S.C. 5304, as amended, which
require each State to carry out a continuing, cooperative, and
comprehensive performance-based statewide multimodal transportation
planning process, including the development of a long-range statewide
transportation plan and STIP, that facilitates the safe and efficient
management, operation, and development of surface transportation
systems that will serve the mobility needs of people and freight
(including accessible pedestrian walkways and bicycle transportation
facilities) and that fosters economic growth and development within and
between States and urbanized areas, while minimizing transportation-
related fuel consumption and air pollution in all areas of the State,
including those areas subject to the metropolitan transportation
planning requirements of 23 U.S.C. 134 and 49 U.S.C. 5303.
Sec. 450.202 Applicability.
The provisions of this subpart are applicable to States and any
other organizations or entities (e.g., MPOs, RTPOs and public
transportation operators) that are responsible for satisfying the
requirements for transportation plans and programs throughout the State
pursuant to 23 U.S.C. 135 and 49 U.S.C. 5304.
Sec. 450.204 Definitions.
Except as otherwise provided in subpart A of this part, terms
defined in 23 U.S.C. 101(a) and 49 U.S.C. 5302 are used in this subpart
as so defined.
Sec. 450.206 Scope of the statewide and nonmetropolitan
transportation planning process.
(a) Each State shall carry out a continuing, cooperative, and
comprehensive statewide transportation planning process that provides
for consideration and implementation of projects, strategies, and
services that will address the following factors:
(1) Support the economic vitality of the United States, the States,
metropolitan areas, and nonmetropolitan areas, especially by enabling
global competitiveness, productivity, and efficiency;
(2) Increase the safety of the transportation system for motorized
and non-motorized users;
(3) Increase the security of the transportation system for
motorized and non-motorized users;
(4) Increase accessibility and mobility of people and freight;
(5) Protect and enhance the environment, promote energy
conservation, improve the quality of life, and promote consistency
between transportation improvements and State and local planned growth
and economic development patterns;
(6) Enhance the integration and connectivity of the transportation
system, across and between modes throughout the State, for people and
freight;
(7) Promote efficient system management and operation; and
(8) Emphasize the preservation of the existing transportation
system.
(b) Consideration of the planning factors in paragraph (a) of this
section shall be reflected, as appropriate, in the statewide
transportation planning process. The degree of consideration and
analysis of the factors should be based on the scale and complexity of
many issues, including transportation systems development, land use,
employment, economic development, human and natural environment
(including Section 4(f) properties as defined in 23 CFR 774.17), and
housing and community development.
(c) Performance-based approach. (1) The statewide transportation
planning process shall provide for the establishment and use of a
performance-based approach to transportation decisionmaking to support
the national goals described in 23 U.S.C. 150(b) and the general
purposes described in 49 U.S.C. 5301.
(2) Each State shall select and establish performance targets in
coordination with the relevant MPOs to ensure consistency to the
maximum extent practicable. The targets shall address the performance
areas described in 23 U.S.C. 150(c), and the measures established under
23 CFR part 490, where applicable, to use in tracking progress toward
attainment of critical outcomes for the State. States shall establish
performance targets that reflect the measures identified in 23 U.S.C.
150(c) not later than 1 year after the effective date of the DOT final
rule on performance measures. Each State shall select and establish
targets under this paragraph in accordance with the appropriate target
setting framework established at 23 CFR part 490. Each State should
select and establish performance targets in coordination with affected
Federal Lands Management agencies, as appropriate.
(3) In areas not represented by an MPO, the selection of public
transportation performance targets by a State shall be coordinated, to
the maximum extent practicable, with providers of public transportation
to ensure consistency with the performance targets that public
transportation providers establish under 49 U.S.C. 5326(c) and 49
U.S.C. 5329(d).
(4) A State shall integrate into the statewide transportation
planning process, directly or by reference, the goals, objectives,
performance measures, and targets described in this section, in other
State transportation plans and transportation processes, as well as any
plans developed pursuant to chapter 53 of title 49 by providers of
public transportation in areas not represented by an MPO required as
part of a performance-based program. Examples of such plans and
processes include the HSIP, SHSP, the National Highway System (NHS)
Asset Management Plan, the State Freight Plan (if the State has one),
the Transit Asset Management Plan, and the Public Transportation Agency
Safety Plan.
(5) A State shall consider the performance measures and targets
established under this paragraph when developing policies, programs,
and investment priorities reflected in the
[[Page 31817]]
statewide transportation plan and statewide transportation improvement
program.
(d) The failure to consider any factor specified in paragraph (a)
or (c) of this section shall not be subject to review by any court
under title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5
U.S.C. Chapter 5, or title 5 U.S.C. Chapter 7 in any matter affecting a
long-range statewide transportation plan, STIP, project or strategy, or
the statewide transportation planning process findings.
(e) Funds provided under 23 U.S.C. 505 and 49 U.S.C. 5305(e) are
available to the State to accomplish activities described in this
subpart. At the State's option, funds provided under 23 U.S.C.
104(b)(2) and 49 U.S.C. 5307, 5310, and 5311 may also be used for
statewide transportation planning. A State shall document statewide
transportation planning activities performed with funds provided under
title 23 U.S.C. and title 49 U.S.C. Chapter 53 in a statewide planning
work program in accordance with the provisions of 23 CFR part 420. The
work program should include a discussion of the transportation planning
priorities facing the State.
Sec. 450.208 Coordination of planning process activities.
(a) In carrying out the statewide transportation planning process,
each State shall, at a minimum:
(1) Coordinate planning carried out under this subpart with the
metropolitan transportation planning activities carried out under
subpart C of this part for metropolitan areas of the State. The State
is encouraged to rely on information, studies, or analyses provided by
MPOs for portions of the transportation system located in metropolitan
planning areas;
(2) Coordinate planning carried out under this subpart with
statewide trade and economic development planning activities and
related multistate planning efforts;
(3) Consider the concerns of Federal land management agencies that
have jurisdiction over land within the boundaries of the State;
(4) Cooperate with affected local elected and appointed officials
with responsibilities for transportation, or, if applicable, through
RTPOs described in Sec. 450.210(d) in nonmetropolitan areas;
(5) Consider the concerns of Indian Tribal governments that have
jurisdiction over land within the boundaries of the State;
(6) Consider related planning activities being conducted outside of
metropolitan planning areas and between States; and
(7) Coordinate data collection and analyses with MPOs and public
transportation operators to support statewide transportation planning
and programming priorities and decisions.
(b) The State air quality agency shall coordinate with the State
department of transportation (State DOT) to develop the transportation
portion of the State Implementation Plan (SIP) consistent with the
Clean Air Act (42 U.S.C. 7401 et seq.).
(c) Two or more States may enter into agreements or compacts, not
in conflict with any law of the United States, for cooperative efforts
and mutual assistance in support of activities under this subpart
related to interstate areas and localities in the States and
establishing authorities the States consider desirable for making the
agreements and compacts effective. The right to alter, amend, or repeal
interstate compacts entered into under this part is expressly reserved.
(d) States may use any one or more of the management systems (in
whole or in part) described in 23 CFR part 500.
(e) In carrying out the statewide transportation planning process,
States shall apply asset management principles and techniques
consistent with the NHS Asset Management Plan and the Transit Asset
Management Plan, and Public Transportation Agency Safety Plan in
establishing planning goals, defining STIP priorities, and assessing
transportation investment decisions, including transportation system
safety, operations, preservation, and maintenance.
(f) For non-NHS highways, States may apply principles and
techniques consistent with other asset management plans to the
transportation planning and programming processes, as appropriate.
(g) A State shall integrate the goals, objectives, performance
measures, and targets from the following into the statewide
transportation planning process:
(1) NHS Asset Management Plan, as defined in 23 U.S.C. 119(e), and
Transit Asset Management Plan, as discussed in 49 U.S.C. 5326;
(2) Applicable portions of the HSIP, including the SHSP, as
specified in 23 U.S.C. 148;
(3) Public Transportation Agency Safety Plan in 49 U.S.C. 5329(b);
(4) Other safety and security planning and review processes, plans,
and programs, as appropriate;
(5) The State Freight Plan, if the State chooses to develop one;
and
(6) Other State transportation plans and transportation processes
required as part of a performance-based program.
(h) The statewide transportation planning process shall (to the
maximum extent practicable) be consistent with the development of
applicable regional intelligent transportation systems (ITS)
architectures, as defined in 23 CFR part 940.
(i) Preparation of the coordinated public transit-human services
transportation plan, as required by 49 U.S.C. 5310, should be
coordinated and consistent with the statewide transportation planning
process.
Sec. 450.210 Interested parties, public involvement, and
consultation.
(a) In carrying out the statewide transportation planning process,
including development of the long-range statewide transportation plan
and the STIP, the State shall develop and use a documented public
involvement process that provides opportunities for public review and
comment at key decision points.
(1) The State's public involvement process at a minimum shall:
(i) Establish early and continuous public involvement opportunities
that provide timely information about transportation issues and
decisionmaking processes to individuals, affected public agencies,
representatives of public transportation employees, freight shippers,
private providers of transportation, representatives of users of public
transportation, representatives of users of pedestrian walkways and
bicycle transportation facilities, representatives of the disabled,
providers of freight transportation services, and other interested
parties;
(ii) Provide reasonable public access to technical and policy
information used in the development of the long-range statewide
transportation plan and the STIP;
(iii) Provide adequate public notice of public involvement
activities and time for public review and comment at key decision
points, including a reasonable opportunity to comment on the proposed
long-range statewide transportation plan and STIP;
(iv) To the maximum extent practicable, ensure that public meetings
are held at convenient and accessible locations and times;
(v) To the maximum extent practicable, use visualization techniques
to describe the proposed long-range statewide transportation plan and
supporting studies;
(vi) To the maximum extent practicable, make public information
[[Page 31818]]
available in electronically accessible format and means, such as the
World Wide Web, as appropriate to afford reasonable opportunity for
consideration of public information;
(vii) Demonstrate explicit consideration and response to public
input during the development of the long-range statewide transportation
plan and STIP;
(viii) Include a process for seeking out and considering the needs
of those traditionally underserved by existing transportation systems,
such as low-income and minority households, who may face challenges
accessing employment and other services; and
(ix) Provide for the periodic review of the effectiveness of the
public involvement process to ensure that the process provides full and
open access to all interested parties and revise the process, as
appropriate.
(2) The State shall provide for public comment on existing and
proposed processes for public involvement in the development of the
long-range statewide transportation plan and the STIP. At a minimum,
the State shall allow 45 calendar days for public review and written
comment before the procedures and any major revisions to existing
procedures are adopted. The State shall provide copies of the approved
public involvement process document(s) to the FHWA and the FTA for
informational purposes.
(b) The State shall provide for nonmetropolitan local official
participation in the development of the long-range statewide
transportation plan and the STIP. The State shall have a documented
process(es) for cooperating with nonmetropolitan local officials
representing units of general purpose local government and/or local
officials with responsibility for transportation that is separate and
discrete from the public involvement process and provides an
opportunity for their participation in the development of the long-
range statewide transportation plan and the STIP. Although the FHWA and
the FTA shall not review or approve this cooperative process(es), the
State shall provide copies of the process document(s) to the FHWA and
the FTA for informational purposes.
(1) At least once every 5 years, the State shall review and solicit
comments from nonmetropolitan local officials and other interested
parties for a period of not less than 60 calendar days regarding the
effectiveness of the cooperative process and any proposed changes. The
State shall direct a specific request for comments to the State
association of counties, State municipal league, regional planning
agencies, or directly to nonmetropolitan local officials.
(2) The State, at its discretion, is responsible for determining
whether to adopt any proposed changes. If a proposed change is not
adopted, the State shall make publicly available its reasons for not
accepting the proposed change, including notification to
nonmetropolitan local officials or their associations.
(c) For each area of the State under the jurisdiction of an Indian
Tribal government, the State shall develop the long-range statewide
transportation plan and STIP in consultation with the Tribal government
and the Secretary of the Interior. States shall, to the extent
practicable, develop a documented process(es) that outlines roles,
responsibilities, and key decision points for consulting with Indian
Tribal governments and Department of the Interior in the development of
the long-range statewide transportation plan and the STIP.
(d) To carry out the transportation planning process required by
this section, a Governor may establish and designate RTPOs to enhance
the planning, coordination, and implementation of the long-range
statewide transportation plan and STIP, with an emphasis on addressing
the needs of nonmetropolitan areas of the State. In order to be treated
as an RTPO for purposes of this Part, any existing regional planning
organization must be established and designated as an RTPO under this
section.
(1) Where established, an RTPO shall be a multijurisdictional
organization of nonmetropolitan local officials or their designees who
volunteer for such organization and representatives of local
transportation systems who volunteer for such organization.
(2) An RTPO shall establish, at a minimum:
(i) A policy committee, the majority of which shall consist of
nonmetropolitan local officials, or their designees, and, as
appropriate, additional representatives from the State, private
business, transportation service providers, economic development
practitioners, and the public in the region; and
(ii) A fiscal and administrative agent, such as an existing
regional planning and development organization, to provide professional
planning, management, and administrative support.
(3) The duties of an RTPO shall include:
(i) Developing and maintaining, in cooperation with the State,
regional long-range multimodal transportation plans;
(ii) Developing a regional TIP for consideration by the State;
(iii) Fostering the coordination of local planning, land use, and
economic development plans with State, regional, and local
transportation plans and programs;
(iv) Providing technical assistance to local officials;
(v) Participating in national, multistate, and State policy and
planning development processes to ensure the regional and local input
of nonmetropolitan areas;
(vi) Providing a forum for public participation in the statewide
and regional transportation planning processes;
(vii) Considering and sharing plans and programs with neighboring
RTPOs, MPOs, and, where appropriate, Indian Tribal Governments; and
(viii) Conducting other duties, as necessary, to support and
enhance the statewide planning process under Sec. 450.206.
(4) If a State chooses not to establish or designate an RTPO, the
State shall consult with affected nonmetropolitan local officials to
determine projects that may be of regional significance.
Sec. 450.212 Transportation planning studies and project development.
(a) Pursuant to section 1308 of the Transportation Equity Act for
the 21st Century, TEA-21 (Pub. L. 105-178), a State(s), MPO(s), or
public transportation operator(s) may undertake a multimodal, systems-
level corridor or subarea planning study as part of the statewide
transportation planning process. To the extent practicable, development
of these transportation planning studies shall involve consultation
with, or joint efforts among, the State(s), MPO(s), and/or public
transportation operator(s). The results or decisions of these
transportation planning studies may be used as part of the overall
project development process consistent with the National Environmental
Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and associated
implementing regulations (23 CFR part 771 and 40 CFR parts 1500-1508).
Specifically, these corridor or subarea studies may result in producing
any of the following for a proposed transportation project:
(1) Purpose and need or goals and objective statement(s);
(2) General travel corridor and/or general mode(s) definition
(e.g., highway, transit, or a highway/transit combination);
(3) Preliminary screening of alternatives and elimination of
unreasonable alternatives;
[[Page 31819]]
(4) Basic description of the environmental setting; and/or
(5) Preliminary identification of environmental impacts and
environmental mitigation.
(b) Publicly available documents or other source material produced
by, or in support of, the transportation planning process described in
this subpart may be incorporated directly or by reference into
subsequent NEPA documents, in accordance with 40 CFR 1502.21, if:
(1) The NEPA lead agencies agree that such incorporation will aid
in establishing or evaluating the purpose and need for the Federal
action, reasonable alternatives, cumulative or other impacts on the
human and natural environment, or mitigation of these impacts; and
(2) The systems-level, corridor, or subarea planning study is
conducted with:
(i) Involvement of interested State, local, Tribal, and Federal
agencies;
(ii) Public review;
(iii) Reasonable opportunity to comment during the statewide
transportation planning process and development of the corridor or
subarea planning study;
(iv) Documentation of relevant decisions in a form that is
identifiable and available for review during the NEPA scoping process
and can be appended to or referenced in the NEPA document; and
(v) The review of the FHWA and the FTA, as appropriate.
(c) By agreement of the NEPA lead agencies, the above integration
may be accomplished through tiering (as described in 40 CFR 1502.20),
incorporating the subarea or corridor planning study into the draft
Environmental Impact Statement or Environmental Assessment, or other
means that the NEPA lead agencies deem appropriate. Additional
information to further explain the linkages between the transportation
planning and project development/NEPA processes is contained in
Appendix A to this part, including an explanation that is non-binding
guidance material.
Sec. 450.214 Development of Programmatic Mitigation Plans.
(a) A State may develop programmatic mitigation plans to address
the potential environmental impacts of future transportation projects.
The State will determine the scope of the programmatic mitigation plan
in consultation with the FHWA and/or the FTA and with the agency or
agencies with jurisdiction and special expertise over the resources
being addressed in the plan.
(1) Scope. (i) A State may develop a programmatic mitigation plan
on a local, regional, ecosystem, watershed, statewide or similar scale.
(ii) The plan may encompass multiple environmental resources within
a defined geographic area(s) or may focus on a specific type(s) of
resource(s) such as aquatic resources, parkland, or wildlife habitat.
(iii) The plan may address or consider impacts from all projects in
a defined geographic area(s) or may focus on a specific type(s) of
project(s).
(2) Contents. The programmatic mitigation plan may include:
(i) An assessment of the existing condition of natural and human
environmental resources within the area covered by the plan, including
an assessment of historic and recent trends and/or any potential
threats to those resources;
(ii) An identification of economic, social, and natural and human
environmental resources within the geographic area that may be impacted
and considered for mitigation. Examples of these resources include
wetlands, streams, rivers, stormwater, parklands, cultural resources,
historic resources, farmlands, and threatened or endangered species
critical habitat. This may include the identification of areas of high
conservation concern or value, and thus worthy of avoidance;
(iii) An inventory of existing or planned environmental resource
banks for the impacted resource categories such as wetland, stream,
habitat, species, and an inventory of federally, State, or locally
approved in-lieu-of-fee programs;
(iv) An assessment of potential opportunities to improve the
overall quality of the identified environmental resources through
strategic mitigation for impacts of transportation projects, which may
include the prioritization of parcels or areas for acquisition and/or
potential resource banking sites;
(v) An adoption or development of standard measures or operating
procedures for mitigating certain types of impacts; establishment of
parameters for determining or calculating appropriate mitigation for
certain types of impacts, such as mitigation ratios, or criteria for
determining appropriate mitigation sites;
(vi) Adaptive management procedures, such as protocols or
procedures that involve monitoring actual impacts against predicted
impacts over time and adjusting mitigation measures in response to
information gathered through the monitoring;
(vii) Acknowledgment of specific statutory or regulatory
requirements that must be satisfied when determining appropriate
mitigation for certain types of resources.
(b) If a State chooses to develop a programmatic mitigation plan
then it shall be developed as part of the statewide transportation
planning process, requiring the State to consider the following process
prior to adopting a programmatic mitigation plan:
(1) Consult with each agency with jurisdiction over the
environmental resources considered in the programmatic mitigation plan;
(2) Make available a draft of the programmatic mitigation plan for
review and comment by appropriate environmental resource agencies and
the public;
(3) Consider comments received from such agencies and the public on
the draft plan; and
(4) Address such comments in the final programmatic mitigation
plan.
(c) A State may integrate a programmatic mitigation plan with other
plans, including, watershed plans, ecosystem plans, species recovery
plans, growth management plans, State Wildlife Action Plans, and land
use plans.
(d) If a programmatic mitigation plan has been developed pursuant
to this section, any Federal agency responsible for environmental
reviews, permits, or approvals for a transportation project may use the
recommendations in the programmatic mitigation plan when carrying out
its responsibilities under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) (NEPA) and any other environmental laws
and regulations.
(e) Nothing in this section limits the use of programmatic
approaches for reviews under NEPA.
Sec. 450.216 Development and content of the long-range statewide
transportation plan.
(a) The State shall develop a long-range statewide transportation
plan, with a minimum 20-year forecast period at the time of adoption,
that provides for the development and implementation of the multimodal
transportation system for the State. The long-range statewide
transportation plan shall consider and include, as applicable, elements
and connections between public transportation, non-motorized modes,
rail, commercial motor vehicle, waterway, and aviation facilities,
particularly with respect to intercity travel.
[[Page 31820]]
(b) The long-range statewide transportation plan should include
capital, operations and management strategies, investments, procedures,
and other measures to ensure the preservation and most efficient use of
the existing transportation system. The long-range statewide
transportation plan may consider projects and strategies that address
areas or corridors where current or projected congestion threatens the
efficient functioning of key elements of the State's transportation
system.
(c) The long-range statewide transportation plan shall reference,
summarize, or contain any applicable short-range planning studies;
strategic planning and/or policy studies; transportation needs studies;
management systems reports; emergency relief and disaster preparedness
plans; and any statements of policies, goals, and objectives on issues
(e.g., transportation, safety, economic development, social and
environmental effects, or energy), as appropriate, that were relevant
to the development of the long-range statewide transportation plan.
(d) The long-range statewide transportation plan should integrate
the priorities, goals, countermeasures, strategies, or projects
contained in the HSIP, including the SHSP, required under 23 U.S.C.
148, the Public Transportation Agency Safety Plan required under 49
U.S.C. 5329(d), or an Interim Agency Safety Plan in accordance with 49
CFR part 659, as in effect until completion of the Public
Transportation Agency Safety Plan.
(e) The long-range statewide transportation plan should include a
security element that incorporates or summarizes the priorities, goals,
or projects set forth in other transit safety and security planning and
review processes, plans, and programs, as appropriate.
(f) The statewide transportation plan should include:
(1) A description of the performance measures and performance
targets used in assessing the performance of the transportation system
in accordance with Sec. 450.206(c); and
(2) A system performance report and subsequent updates evaluating
the condition and performance of the transportation system with respect
to the performance targets described in Sec. 450.206(c), including
progress achieved by the MPO(s) in meeting the performance targets in
comparison with system performance recorded in previous reports.
(g) Within each metropolitan area of the State, the State shall
develop the long-range statewide transportation plan in cooperation
with the affected MPOs.
(h) For nonmetropolitan areas, the State shall develop the long-
range statewide transportation plan in cooperation with affected
nonmetropolitan local officials with responsibility for transportation
or, if applicable, through RTPOs described in Sec. 450.210(d) using
the State's consultation process(es) established under Sec.
450.210(b).
(i) For each area of the State under the jurisdiction of an Indian
Tribal government, the State shall develop the long-range statewide
transportation plan in consultation with the Tribal government and the
Secretary of the Interior consistent with Sec. 450.210(c).
(j) The State shall develop the long-range statewide transportation
plan, as appropriate, in consultation with State, Tribal, and local
agencies responsible for land use management, natural resources,
environmental protection, conservation, and historic preservation. This
consultation shall involve comparison of transportation plans to State
and Tribal conservation plans or maps, if available, and comparison of
transportation plans to inventories of natural or historic resources,
if available.
(k) A long-range statewide transportation plan shall include a
discussion of potential environmental mitigation activities and
potential areas to carry out these activities, including activities
that may have the greatest potential to restore and maintain the
environmental functions affected by the long-range statewide
transportation plan. The discussion may focus on policies, programs, or
strategies, rather than at the project level. The State shall develop
the discussion in consultation with Federal, State, regional, local and
Tribal land management, wildlife, and regulatory agencies. The State
may establish reasonable timeframes for performing this consultation.
(l) In developing and updating the long-range statewide
transportation plan, the State shall provide:
(1) To nonmetropolitan local elected officials, or, if applicable,
through RTPOs described in Sec. 450.210(d), an opportunity to
participate in accordance with Sec. 450.216(h); and
(2) To individuals, affected public agencies, representatives of
public transportation employees, freight shippers, private providers of
transportation, representatives of users of public transportation,
representatives of users of pedestrian walkways and bicycle
transportation facilities, representatives of the disabled, providers
of freight transportation services, and other interested parties with a
reasonable opportunity to comment on the proposed long-range statewide
transportation plan. In carrying out these requirements, the State
shall use the public involvement process described under Sec.
450.210(a).
(m) The long-range statewide transportation plan may include a
financial plan that demonstrates how the adopted long-range statewide
transportation plan can be implemented, indicates resources from public
and private sources that are reasonably expected to be made available
to carry out the plan, and recommends any additional financing
strategies for needed projects and programs. In addition, for
illustrative purposes, the financial plan may include additional
projects that the State would include in the adopted long-range
statewide transportation plan if additional resources beyond those
identified in the financial plan were to become available. The
financial plan may include an assessment of the appropriateness of
innovative finance techniques (for example, tolling, pricing, bonding,
public-private partnerships, or other strategies) as revenue sources.
(n) The long-range statewide transportation plan should be informed
by the financial plan and investment strategies from the State asset
management plan for the NHS (as defined in 23 U.S.C. 119(e)) and
investment priorities of the public transit asset management plan(s)
(as discussed in 49 U.S.C. 5326).
(o) The State is not required to select any project from the
illustrative list of additional projects included in the financial plan
described in paragraph (m) of this section.
(p) The State shall publish or otherwise make available the long-
range statewide transportation plan for public review, including (to
the maximum extent practicable) in electronically accessible formats
and means, such as the World Wide Web, as described in Sec.
450.210(a).
(q) The State shall continually evaluate, revise, and periodically
update the long-range statewide transportation plan, as appropriate,
using the procedures in this section for development and establishment
of the long-range statewide transportation plan.
(r) The State shall provide copies of any new or amended long-range
statewide transportation plan documents to the FHWA and the FTA for
informational purposes.
[[Page 31821]]
Sec. 450.218 Development and content of the statewide transportation
improvement program (STIP).
(a) The State shall develop a statewide transportation improvement
program (STIP) for all areas of the State. The STIP shall cover a
period of no less than 4 years and shall be updated at least every 4
years, or more frequently if the Governor of the State elects a more
frequent update cycle. However, if the STIP covers more than 4 years,
the FHWA and the FTA will consider the projects in the additional years
as informational. In case of difficulties developing a portion of the
STIP for a particular area (e.g., metropolitan planning area,
nonattainment or maintenance area, or Indian Tribal lands), the State
may develop a partial STIP covering the rest of the State.
(b) For each metropolitan area in the State, the State shall
develop the STIP in cooperation with the MPO designated for the
metropolitan area. The State shall include each metropolitan TIP
without change in the STIP, directly or by reference, after approval of
the TIP by the MPO and the Governor. A metropolitan TIP in a
nonattainment or maintenance area is subject to a FHWA/FTA conformity
finding before inclusion in the STIP. In areas outside a metropolitan
planning area but within an air quality nonattainment or maintenance
area containing any part of a metropolitan area, projects must be
included in the regional emissions analysis that supported the
conformity determination of the associated metropolitan TIP before they
are added to the STIP.
(c) For each nonmetropolitan area in the State, the State shall
develop the STIP in cooperation with affected nonmetropolitan local
officials with responsibility for transportation or, if applicable,
through RTPOs described in Sec. 450.210(d) using the State's
consultation process(es) established under Sec. 450.210(b).
(d) For each area of the State under the jurisdiction of an Indian
Tribal government, the STIP shall be developed in consultation with the
Tribal government and the Secretary of the Interior.
(e) Tribal Transportation Program, Federal Lands Transportation
Program, and Federal Lands Access Program TIPs shall be included
without change in the STIP, directly or by reference, once approved by
the FHWA pursuant to 23 U.S.C. 201(c)(4).
(f) The Governor shall provide all interested parties with a
reasonable opportunity to comment on the proposed STIP as required by
Sec. 450.210(a).
(g) The STIP shall include capital and non-capital surface
transportation projects (or phases of projects) within the boundaries
of the State proposed for funding under title 23 U.S.C. and title 49
U.S.C. Chapter 53 (including transportation alternatives and associated
transit improvements; Tribal Transportation Program projects, Federal
Lands Transportation Program projects, and Federal Lands Access Program
projects; HSIP projects; trails projects; and accessible pedestrian
walkways and bicycle facilities), except the following that may be
included:
(1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
(2) Metropolitan planning projects funded under 23 U.S.C. 104(d)
and 49 U.S.C. 5305(d);
(3) State planning and research projects funded under 23 U.S.C. 505
and 49 U.S.C. 5305(e);
(4) State planning and research projects funded with Surface
Transportation Program funds;
(5) Emergency relief projects (except those involving substantial
functional, locational, or capacity changes);
(6) Research, development, demonstration, and deployment projects
funded under 49 U.S.C. 5312, and technical assistance and standards
development projects funded under 49 U.S.C. 5314;
(7) Project management oversight projects funded under 49 U.S.C.
5327; and
(8) State safety oversight programs funded under 49 U.S.C. 5329.
(h) The STIP shall contain all regionally significant projects
requiring an action by the FHWA or the FTA whether or not the projects
are to be funded with 23 U.S.C. Chapters 1 and 2 or title 49 U.S.C.
Chapter 53 funds (e.g., addition of an interchange to the Interstate
System with State, local, and/or private funds, and congressionally
designated projects not funded under title 23 U.S.C. or title 49 U.S.C.
Chapter 53). For informational and conformity purposes, the STIP shall
include (if appropriate and included in any TIPs) all regionally
significant projects proposed to be funded with Federal funds other
than those administered by the FHWA or the FTA, as well as all
regionally significant projects to be funded with non-Federal funds.
(i) The STIP shall include for each project or phase (e.g.,
preliminary engineering, environment/NEPA, right-of-way, design, or
construction) the following:
(1) Sufficient descriptive material (i.e., type of work, termini,
and length) to identify the project or phase;
(2) Estimated total project cost or a project cost range, which may
extend beyond the 4 years of the STIP;
(3) The amount of Federal funds proposed to be obligated during
each program year. For the first year, this includes the proposed
category of Federal funds and source(s) of non-Federal funds. For the
second, third, and fourth years, this includes the likely category or
possible categories of Federal funds and sources of non-Federal funds;
and
(4) Identification of the agencies responsible for carrying out the
project or phase.
(j) Projects that are not considered to be of appropriate scale for
individual identification in a given program year may be grouped by
function, work type, and/or geographic area using the applicable
classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93.
In nonattainment and maintenance areas, project classifications must be
consistent with the ``exempt project'' classifications contained in the
EPA's transportation conformity regulations (40 CFR part 93, subpart
A). In addition, projects proposed for funding under title 23 U.S.C.
Chapter 2 that are not regionally significant may be grouped in one
line item or identified individually in the STIP.
(k) Each project or project phase included in the STIP shall be
consistent with the long-range statewide transportation plan developed
under Sec. 450.216 and, in metropolitan planning areas, consistent
with an approved metropolitan transportation plan developed under Sec.
450.324.
(l) The STIP may include a financial plan that demonstrates how the
approved STIP can be implemented, indicates resources from public and
private sources that are reasonably expected to be available to carry
out the STIP, and recommends any additional financing strategies for
needed projects and programs. In addition, for illustrative purposes,
the financial plan may include additional projects that would be
included in the adopted STIP if reasonable additional resources beyond
those identified in the financial plan were to become available. The
State is not required to select any project from the illustrative list
for implementation, and projects on the illustrative list cannot be
advanced to implementation without an action by the FHWA and the FTA on
the STIP. Revenue and cost estimates for the STIP must use an inflation
rate to reflect ``year of expenditure dollars,'' based on reasonable
financial principles and information, developed cooperatively by
[[Page 31822]]
the State, MPOs, and public transportation operators.
(m) In nonattainment and maintenance areas, projects included in
the first 2 years of the STIP shall be limited to those for which funds
are available or committed. Financial constraint of the STIP shall be
demonstrated and maintained by year and shall include sufficient
financial information to demonstrate which projects are to be
implemented using current and/or reasonably available revenues, while
federally supported facilities are being adequately operated and
maintained. In the case of proposed funding sources, strategies for
ensuring their availability shall be identified in the financial plan
consistent with paragraph (l) of this section. For purposes of
transportation operations and maintenance, the STIP shall include
financial information containing system-level estimates of costs and
revenue sources that are reasonably expected to be available to
adequately operate and maintain Federal-aid highways (as defined by 23
U.S.C. 101(a)(5)) and public transportation (as defined by title 49
U.S.C. 5302).
(n) Projects in any of the first 4 years of the STIP may be
advanced in place of another project in the first 4 years of the STIP,
subject to the project selection requirements of Sec. 450.222. In
addition, subject to FHWA/FTA approval (see Sec. 450.220), the State
may revise the STIP at any time under procedures agreed to by the
State, MPO(s), and public transportation operators consistent with the
STIP development procedures established in this section, as well as the
procedures for participation by interested parties (see Sec.
450.210(a)). Changes that affect fiscal constraint must take place by
amendment of the STIP.
(o) The STIP should be informed by the financial plan and the
investment strategies from the State asset management plan for the NHS
(as defined in 23 U.S.C. 119(e)) and by the public transit asset
management plan(s) (as discussed in 49 U.S.C. 5326).
(p) The STIP shall include a project, or an identified phase of a
project, only if full funding can reasonably be anticipated to be
available for the project within the time period contemplated for
completion of the project.
(q) In cases where the FHWA and the FTA find a STIP to be fiscally
constrained, and a revenue source is subsequently removed or
substantially reduced (i.e., by legislative or administrative actions),
the FHWA and the FTA will not withdraw the original determination of
fiscal constraint. However, in such cases, the FHWA and the FTA will
not act on an updated or amended STIP that does not reflect the changed
revenue situation.
(r) A STIP shall include, to the maximum extent practicable, a
discussion of the anticipated effect of the STIP toward achieving the
performance targets identified by the State in the statewide
transportation plan or other state performance-based plan(s), linking
investment priorities to those performance targets. This discussion
should be consistent with the strategies to achieve targets presented
in the statewide transportation plan and other performance management
plans such as the highway and transit asset management plans, the SHSP,
the public transportation agency safety plan, the Congestion Mitigation
and Air Quality Improvement Program (CMAQ) performance plan, and if one
exists, the State freight plan.
Sec. 450.220 Self-certifications, Federal findings, and Federal
approvals.
(a) At least every 4 years, the State shall submit an updated STIP
concurrently to the FHWA and the FTA for joint approval. The State must
also submit STIP amendments to the FHWA and the FTA for joint approval.
At the time the entire proposed STIP or STIP amendments are submitted
to the FHWA and the FTA for joint approval, the State shall certify
that the transportation planning process is being carried out in
accordance with all applicable requirements of:
(1) 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and 5304, and this part;
(2) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d-1) and 49 CFR part 21;
(3) 49 U.S.C. 5332, prohibiting discrimination on the basis of
race, color, creed, national origin, sex, or age in employment or
business opportunity;
(4) Section 1101(b) of MAP-21 (Pub. L. 112-141) and 49 CFR part 26
regarding the involvement of disadvantaged business enterprises in DOT
funded projects;
(5) 23 CFR part 230, regarding implementation of an equal
employment opportunity program on Federal and Federal-aid highway
construction contracts;
(6) The provisions of the Americans with Disabilities Act of 1990
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
(7) In States containing nonattainment and maintenance areas,
sections 174 and 176(c) and (d) of the Clean Air Act, as amended (42
U.S.C. 7504, 7506(c) and (d)) and 40 CFR part 93;
(8) The Older Americans Act, as amended (42 U.S.C. 6101),
prohibiting discrimination on the basis of age in programs or
activities receiving Federal financial assistance;
(9) 23 U.S.C. 324, regarding the prohibition of discrimination
based on gender; and
(10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)
and 49 CFR part 27 regarding discrimination against individuals with
disabilities.
(b) The FHWA and the FTA shall review the STIP or the amended STIP,
and make a joint finding on the extent to which the STIP is based on a
statewide transportation planning process that meets or substantially
meets the requirements of 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and
5304, and subparts A, B, and C of this part. Approval of the STIP by
the FHWA and the FTA, in its entirety or in part, will be based upon
the results of this joint finding.
(1) If the FHWA and the FTA determine that the STIP or amended STIP
is based on a statewide transportation planning process that meets or
substantially meets the requirements of 23 U.S.C. 135, 49 U.S.C. 5304,
and this part, the FHWA and the FTA may jointly:
(i) Approve the entire STIP;
(ii) Approve the STIP subject to certain corrective actions by the
State; or
(iii) Under special circumstances, approve a partial STIP covering
only a portion of the State.
(2) If the FHWA and the FTA jointly determine and document in the
planning finding that a submitted STIP or amended STIP does not
substantially meet the requirements of 23 U.S.C. 135, 49 U.S.C. 5304,
and this part for any identified categories of projects, the FHWA and
the FTA will not approve the STIP.
(c) The approval period for a new or amended STIP shall not exceed
4 years. If a State demonstrates, in writing, that extenuating
circumstances will delay the submittal of a new or amended STIP past
its update deadline, the FHWA and the FTA will consider and take
appropriate action on a request to extend the approval beyond 4 years
for all or part of the STIP for a period not to exceed 180 calendar
days. In these cases, priority consideration will be given to projects
and strategies involving the operation and management of the multimodal
transportation system. Where the request involves projects in a
metropolitan planning area(s), the affected MPO(s) must concur in the
request. If the delay was due to the
[[Page 31823]]
development and approval of a metropolitan TIP(s), the affected MPO(s)
must provide supporting information, in writing, for the request.
(d) Where necessary in order to maintain or establish highway and
transit operations, the FHWA and the FTA may approve operating
assistance for specific projects or programs, even though the projects
or programs may not be included in an approved STIP.
Sec. 450.222 Project selection from the STIP.
(a) Except as provided in Sec. 450.218(g) and Sec. 450.220(d),
only projects in a FHWA/FTA approved STIP are eligible for funds
administered by the FHWA or the FTA.
(b) In metropolitan planning areas, transportation projects
proposed for funds administered by the FHWA or the FTA shall be
selected from the approved STIP in accordance with project selection
procedures provided in Sec. 450.332.
(c) In nonmetropolitan areas, with the exclusion of specific
projects as described in this section, the State shall select projects
from the approved STIP in cooperation with the affected nonmetropolitan
local officials, or if applicable, through RTPOs described in Sec.
450.210(e). The State shall select transportation projects undertaken
on the NHS, under the Bridge and Interstate Maintenance programs in
title 23 U.S.C. and under sections 5310 and 5311 of title 49 U.S.C.
Chapter 53 from the approved STIP in consultation with the affected
nonmetropolitan local officials with responsibility for transportation.
(d) Tribal Transportation Program, Federal Lands Transportation
Program, and Federal Lands Access Program projects shall be selected
from the approved STIP in accordance with the procedures developed
pursuant to 23 U.S.C. 201, 202, 203, and 204.
(e) The projects in the first year of an approved STIP shall
constitute an ``agreed to'' list of projects for subsequent scheduling
and implementation. No further action under paragraphs (b) through (d)
of this section is required for the implementing agency to proceed with
these projects. If Federal funds available are significantly less than
the authorized amounts, or where there is significant shifting of
projects among years, Sec. 450.332(a) provides for a revised list of
``agreed to'' projects to be developed upon the request of the State,
MPO, or public transportation operator(s). If an implementing agency
wishes to proceed with a project in the second, third, or fourth year
of the STIP, the procedures in paragraphs (b) through (d) of this
section or expedited procedures that provide for the advancement of
projects from the second, third, or fourth years of the STIP may be
used, if agreed to by all parties involved in the selection process.
Sec. 450.224 Applicability of NEPA to statewide transportation plans
and programs.
Any decision by the Secretary concerning a long-range statewide
transportation plan or STIP developed through the processes provided
for in 23 U.S.C. 135, 49 U.S.C. 5304, and this subpart shall not be
considered to be a Federal action subject to review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
Sec. 450.226 Phase-in of new requirements.
(a) Prior to [2 years after the publication date of the final
rule], a State may adopt a long-range statewide transportation plan
that has been developed using the SAFETEA-LU requirements or the
provisions and requirements of this part. On or [2 years after the
publication date of the final rule], a State may only adopt a long-
range statewide transportation plan that it has developed according to
the provisions and requirements of this part.
(b) Prior to [2 years after the publication date of the final
rule], FHWA/FTA may approve a STIP update or amendment that has been
developed using the SAFETEA-LU requirements or the provisions and
requirements of this part. On or after [2 years after the publication
date of the final rule], FHWA/FTA may only approve a STIP update or
amendment that a State has developed according to the provisions and
requirements of this part, regardless of when the State developed the
STIP.
(c) On and after [2 years after the publication date of the final
rule], the FHWA and the FTA will take action on an updated or amended
STIP developed under the provisions of this part, even if the State has
not yet adopted a new long-range statewide transportation plan under
the provisions of this part, as long as the underlying transportation
planning process is consistent with the requirements in the MAP-21.
(d) On or after [2 years after the publication date of the final
rule], a State may make an administrative modification to a STIP that
conforms to either the SAFETEA-LU requirements or to the provisions and
requirements of this part.
(e) Two years from the effective date of each rule establishing
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49
U.S.C. 5329, FHWA/FTA will only approve an updated or amended STIP that
is based on a statewide transportation planning process that meets the
performance-based planning requirements in this part and in such a
rule.
(f) Prior to 2 years from the effective date of each rule
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C.
5326, or 49 U.S.C. 5329, a State may adopt a long-range statewide
transportation plan that it has developed using the SAFETEA-LU
requirements or the performance-based provisions and requirements of
this part and in such a rule. Two years on or after the effective date
of each rule establishing performance measures under 23 U.S.C. 150(c),
49 U.S.C. 5326, or 49 U.S.C. 5329, a State may only adopt a long-range
statewide transportation plan that it has developed according to the
performance-based provisions and requirements of this part and in such
a rule.
Subpart C--Metropolitan Transportation Planning and Programming
Sec. 450.300 Purpose.
The purposes of this subpart are to implement the provisions of 23
U.S.C. 134, 23 U.S.C. 150, and 49 U.S.C. 5303, as amended, which:
(a) Set forth the national policy that the MPO designated for each
urbanized area is to carry out a continuing, cooperative, and
comprehensive performance-based multimodal transportation planning
process, including the development of a metropolitan transportation
plan and a TIP, that encourages and promotes the safe and efficient
development, management, and operation of surface transportation
systems to serve the mobility needs of people and freight (including
accessible pedestrian walkways and bicycle transportation facilities)
and foster economic growth and development, while minimizing
transportation-related fuel consumption and air pollution; and
(b) Encourages continued development and improvement of
metropolitan transportation planning processes guided by the planning
factors set forth in 23 U.S.C. 134(h) and 49 U.S.C. 5303(h).
Sec. 450.302 Applicability.
The provisions of this subpart are applicable to organizations and
entities responsible for the transportation planning and programming
processes in metropolitan planning areas.
[[Page 31824]]
Sec. 450.304 Definitions.
Except as otherwise provided in subpart A of this part, terms
defined in 23 U.S.C. 101(a) and 49 U.S.C. 5302 are used in this subpart
as so defined.
Sec. 450.306 Scope of the metropolitan transportation planning
process.
(a) To accomplish the objectives in Sec. Sec. 450.300 and
450.306(b), metropolitan planning organizations designated under Sec.
450.310, in cooperation with the State and public transportation
operators, shall develop long-range transportation plans and TIPs
through a performance-driven, outcome-based approach to planning for
metropolitan areas of the State.
(b) The metropolitan transportation planning process shall be
continuous, cooperative, and comprehensive, and provide for
consideration and implementation of projects, strategies, and services
that will address the following factors:
(1) Support the economic vitality of the metropolitan area,
especially by enabling global competitiveness, productivity, and
efficiency;
(2) Increase the safety of the transportation system for motorized
and non-motorized users;
(3) Increase the security of the transportation system for
motorized and non-motorized users;
(4) Increase accessibility and mobility of people and freight;
(5) Protect and enhance the environment, promote energy
conservation, improve the quality of life, and promote consistency
between transportation improvements and State and local planned growth
and economic development patterns;
(6) Enhance the integration and connectivity of the transportation
system, across and between modes, for people and freight;
(7) Promote efficient system management and operation; and
(8) Emphasize the preservation of the existing transportation
system.
(c) Consideration of the planning factors in paragraph (b) of this
section shall be reflected, as appropriate, in the metropolitan
transportation planning process. The degree of consideration and
analysis of the factors should be based on the scale and complexity of
many issues, including transportation system development, land use,
employment, economic development, human and natural environment
(including Section 4(f) properties as defined in 23 CFR 774.17), and
housing and community development.
(d) Performance-based approach. (1) The metropolitan transportation
planning process shall provide for the establishment and use of a
performance-based approach to transportation decisionmaking to support
the national goals described in 23 U.S.C. 150(b) and the general
purposes described in 49 U.S.C. 5301(c).
(2) Establishment of performance targets by metropolitan planning
organizations. (i) Each metropolitan planning organization shall
establish performance targets that address the performance measures or
standards established under 23 CFR part 490 (where applicable), 49
U.S.C. 5326(c), and 49 U.S.C. 5329(d) to use in tracking progress
toward attainment of critical outcomes for the region of the
metropolitan planning organization.
(ii) The selection of targets that address performance measures
described in 23 U.S.C. 150(c) shall be in accordance with the
appropriate target setting framework established at 23 CFR part 490,
and shall be coordinated with the relevant State(s) to ensure
consistency, to the maximum extent practicable.
(iii) The selection of performance targets that address performance
measures described in 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) shall be
coordinated, to the maximum extent practicable, with public
transportation providers to ensure consistency with the performance
targets that public transportation providers establish under 49 U.S.C.
5326(c) and 49 U.S.C. 5329(d).
(3) Each MPO shall establish the performance targets under
paragraph (d)(2) not later than 180 days after the date on which the
relevant State or provider of public transportation establishes the
performance targets.
(4) An MPO shall integrate in the metropolitan transportation
planning process, directly or by reference, the goals, objectives,
performance measures, and targets described in other State
transportation plans and transportation processes, as well as any plans
developed under 49 U.S.C. chapter 53 by providers of public
transportation, required as part of a performance-based program
including:
(i) The NHS asset management plan, as defined in 23 U.S.C. 119(e)
and the Transit Asset Management Plan, as discussed in 49 U.S.C. 5326;
(ii) Applicable portions of the HSIP, including the SHSP, as
specified in 23 U.S.C. 148;
(iii) The Public Transportation Agency Safety Plan in 49 U.S.C.
5329(d);
(iv) Other safety and security planning and review processes,
plans, and programs, as appropriate;
(v) The Congestion Mitigation and Air Quality Improvement Program
performance plan in 23 U.S.C. 149(l), as applicable;
(v) Appropriate (metropolitan) portions of the State Freight Plan
(MAP-21 sec. 1118);
(vi) The congestion management process, as defined in 23 CFR
450.322, if applicable; and
(vii) Other State transportation plans and transportation processes
required as part of a performance-based program.
(e) The failure to consider any factor specified in paragraph (b)
or (d) of this section shall not be reviewable by any court under title
23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5, U.S.C.
Chapter 5, or title 5 U.S.C. Chapter 7 in any matter affecting a
metropolitan transportation plan, TIP, a project or strategy, or the
certification of a metropolitan transportation planning process.
(f) An MPO shall carry out the metropolitan transportation planning
process in coordination with the statewide transportation planning
process required by 23 U.S.C. 135 and 49 U.S.C. 5304.
(g) The metropolitan transportation planning process shall (to the
maximum extent practicable) be consistent with the development of
applicable regional intelligent transportation systems (ITS)
architectures, as defined in 23 CFR part 940.
(h) Preparation of the coordinated public transit-human services
transportation plan, as required by 49 U.S.C. 5310, should be
coordinated and consistent with the metropolitan transportation
planning process.
(i) In an urbanized area not designated as a TMA that is an air
quality attainment area, the MPO(s) may propose and submit to the FHWA
and the FTA for approval a procedure for developing an abbreviated
metropolitan transportation plan and TIP. In developing proposed
simplified planning procedures, consideration shall be given to whether
the abbreviated metropolitan transportation plan and TIP will achieve
the purposes of 23 U.S.C. 134, 49 U.S.C. 5303, and these regulations,
taking into account the complexity of the transportation problems in
the area. The MPO shall develop simplified procedures in cooperation
with the State(s) and public transportation operator(s).
Sec. 450.308 Funding for transportation planning and unified planning
work programs.
(a) Funds provided under 23 U.S.C. 104(d), 49 U.S.C. 5305(d), and
49 U.S.C. 5307, are available to MPOs to accomplish activities
described in this subpart. At the State's option, funds
[[Page 31825]]
provided under 23 U.S.C. 104(b)(2) and 23 U.S.C. 505 may also be
provided to MPOs for metropolitan transportation planning. At the
option of the State and transit operator(s), funds provided under 49
U.S.C. 5305(e) may also be provided to MPOs for activities that support
metropolitan transportation planning. In addition, an MPO serving an
urbanized area with a population over 200,000, as designated by the
Bureau of the Census, may at its discretion use funds sub-allocated
under 23 U.S.C. 133(d)(4) for metropolitan transportation planning
activities.
(b) An MPO shall document metropolitan transportation planning
activities performed with funds provided under title 23 U.S.C. and
title 49 U.S.C. Chapter 53 in a unified planning work program (UPWP) or
simplified statement of work in accordance with the provisions of this
section and 23 CFR part 420.
(c) Except as provided in paragraph (d) of this section, each MPO,
in cooperation with the State(s) and public transportation operator(s),
shall develop a UPWP that includes a discussion of the planning
priorities facing the MPA. The UPWP shall identify work proposed for
the next 1- or 2-year period by major activity and task (including
activities that address the planning factors in Sec. 450.306(b)), in
sufficient detail to indicate who (e.g., MPO, State, public
transportation operator, local government, or consultant) will perform
the work, the schedule for completing the work, the resulting products,
the proposed funding by activity/task, and a summary of the total
amounts and sources of Federal and matching funds.
(d) With the prior approval of the State and the FHWA and the FTA,
an MPO in an area not designated as a TMA may prepare a simplified
statement of work, in cooperation with the State(s) and the public
transportation operator(s), in lieu of a UPWP. A simplified statement
of work shall include a description of the major activities to be
performed during the next 1- or 2-year period, who (e.g., State, MPO,
public transportation operator, local government, or consultant) will
perform the work, the resulting products, and a summary of the total
amounts and sources of Federal and matching funds. If a simplified
statement of work is used, it may be submitted as part of the State's
planning work program, in accordance with 23 CFR part 420.
(e) Arrangements may be made with the FHWA and the FTA to combine
the UPWP or simplified statement of work with the work program(s) for
other Federal planning funds.
(f) Administrative requirements for UPWPs and simplified statements
of work are contained in 23 CFR part 420 and FTA Circular C8100, as
amended (Program Guidance for Metropolitan Planning and State Planning
and Research Program Grants).
Sec. 450.310 Metropolitan planning organization designation and
redesignation.
(a) To carry out the metropolitan transportation planning process
under this subpart, an MPO shall be designated for each urbanized area
with a population of more than 50,000 individuals (as determined by the
Bureau of the Census).
(b) MPO designation shall be made by agreement between the Governor
and units of general purpose local government that together represent
at least 75 percent of the affected population (including the largest
incorporated city, based on population, as named by the Bureau of the
Census) or in accordance with procedures established by applicable
State or local law.
(c) The FHWA and the FTA shall identify as a TMA each urbanized
area with a population of over 200,000 individuals, as defined by the
Bureau of the Census. The FHWA and the FTA shall also designate any
urbanized area as a TMA on the request of the Governor and the MPO
designated for that area.
(d) TMA structure. (1) Not later than October 1, 2014, each
metropolitan planning organization that serves a designated TMA shall
consist of:
(i) Local elected officials;
(ii) Officials of public agencies that administer or operate major
modes of transportation in the metropolitan area, including
representation by providers of public transportation; and
(iii) Appropriate State officials.
(2) An MPO may be restructured to meet the requirements of this
paragraph (d) without undertaking a redesignation.
(3) Nothing in this section shall be construed to interfere with
the authority, under any State law in effect on December 18, 1991, of a
public agency with multimodal transportation responsibilities:
(i) To develop the plans and TIPs for adoption by an MPO; and
(ii) To develop long-range capital plans, coordinate transit
services and projects, and carry out other activities pursuant to State
law.
(e) To the extent possible, only one MPO shall be designated for
each urbanized area or group of contiguous urbanized areas. More than
one MPO may be designated to serve an urbanized area only if the
Governor(s) and the existing MPO, if applicable, determine that the
size and complexity of the urbanized area make designation of more than
one MPO appropriate. In those cases where two or more MPOs serve the
same urbanized area, the MPOs shall establish official, written
agreements that clearly identify areas of coordination and the division
of transportation planning responsibilities among the MPOs.
(f) Nothing in this subpart shall be deemed to prohibit an MPO from
using the staff resources of other agencies, non-profit organizations,
or contractors to carry out selected elements of the metropolitan
transportation planning process.
(g) An MPO designation shall remain in effect until an official
redesignation has been made in accordance with this section.
(h) An existing MPO may be redesignated only by agreement between
the Governor and units of general purpose local government that
together represent at least 75 percent of the existing metropolitan
planning area population (including the largest incorporated city,
based on population, as named by the Bureau of the Census).
(i) For the purposes of redesignation, units of general purpose
local government may be defined as elected officials from each unit of
general purpose local government located within the metropolitan
planning area served by the existing MPO.
(j) Redesignation of an MPO (in accordance with the provisions of
this section) is required whenever the existing MPO proposes to make:
(1) A substantial change in the proportion of voting members on the
existing MPO representing the largest incorporated city, other units of
general purpose local government served by the MPO, and the State(s);
or
(2) A substantial change in the decisionmaking authority or
responsibility of the MPO, or in decisionmaking procedures established
under MPO by-laws.
(k) Redesignation of an MPO serving a multistate metropolitan
planning area requires agreement between the Governors of each State
served by the existing MPO and units of general purpose local
government that together represent at least 75 percent of the existing
metropolitan planning area population (including the largest
incorporated city, based on population, as named by the Bureau of the
Census).
(l) The following changes to an MPO do not require a redesignation
(as long as they do not trigger a substantial
[[Page 31826]]
change as described in paragraph (j) of this section):
(1) The identification of a new urbanized area (as determined by
the Bureau of the Census) within an existing metropolitan planning
area;
(2) Adding members to the MPO that represent new units of general
purpose local government resulting from expansion of the metropolitan
planning area;
(3) Adding members to satisfy the specific membership requirements
described in paragraph (d) for an MPO that serves a TMA; or
(4) Periodic rotation of members representing units of general-
purpose local government, as established under MPO by-laws.
(m) Each Governor with responsibility for a portion of a multistate
metropolitan area and the appropriate MPOs shall, to the extent
practicable, provide coordinated transportation planning for the entire
MPA. The consent of Congress is granted to any two or more States to:
(1) Enter into agreements or compacts, not in conflict with any law
of the United States, for cooperative efforts and mutual assistance in
support of activities authorized under 23 U.S.C. 134 and 49 U.S.C. 5303
as the activities pertain to interstate areas and localities within the
States; and
(2) Establish such agencies, joint or otherwise, as the States may
determine desirable for making the agreements and compacts effective.
Sec. 450.312 Metropolitan planning area boundaries.
(a) The boundaries of a metropolitan planning area (MPA) shall be
determined by agreement between the MPO and the Governor.
(1) At a minimum, the MPA boundaries shall encompass the entire
existing urbanized area (as defined by the Bureau of the Census) plus
the contiguous area expected to become urbanized within a 20-year
forecast period for the metropolitan transportation plan.
(2) The MPA boundaries may be further expanded to encompass the
entire metropolitan statistical area or combined statistical area, as
defined by the Office of Management and Budget.
(b) An MPO that serves an urbanized area designated as a
nonattainment area for ozone or carbon monoxide under the Clean Air Act
(42 U.S.C. 7401 et seq.) as of August 10, 2005, shall retain the MPA
boundary that existed on August 10, 2005. The MPA boundaries for such
MPOs may only be adjusted by agreement of the Governor and the affected
MPO in accordance with the redesignation procedures described in Sec.
450.310(h). The MPA boundary for an MPO that serves an urbanized area
designated as a nonattainment area for ozone or carbon monoxide under
the Clean Air Act (42 U.S.C. 7401 et seq.) after August 10, 2005, may
be established to coincide with the designated boundaries of the ozone
and/or carbon monoxide nonattainment area, in accordance with the
requirements in Sec. 450.310(b).
(c) An MPA boundary may encompass more than one urbanized area.
(d) MPA boundaries may be established to coincide with the
geography of regional economic development and growth forecasting
areas.
(e) Identification of new urbanized areas within an existing
metropolitan planning area by the Bureau of the Census shall not
require redesignation of the existing MPO.
(f) Where the boundaries of the urbanized area or MPA extend across
two or more States, the Governors with responsibility for a portion of
the multistate area, the appropriate MPO(s), and the public
transportation operator(s) are strongly encouraged to coordinate
transportation planning for the entire multistate area.
(g) The MPA boundaries shall not overlap with each other.
(h) Where part of an urbanized area served by one MPO extends into
an adjacent MPA, the MPOs shall, at a minimum, establish written
agreements that clearly identify areas of coordination and the division
of transportation planning responsibilities among and between the MPOs.
Alternatively, the MPOs may adjust their existing boundaries so that
the entire urbanized area lies within only one MPA. Boundary
adjustments that change the composition of the MPO may require
redesignation of one or more such MPOs.
(i) The MPO (in cooperation with the State and public
transportation operator(s)) shall review the MPA boundaries after each
Census to determine if existing MPA boundaries meet the minimum
statutory requirements for new and updated urbanized area(s), and shall
adjust them as necessary. As appropriate, additional adjustments should
be made to reflect the most comprehensive boundary to foster an
effective planning process that ensures connectivity between modes,
improves access to modal systems, and promotes efficient overall
transportation investment strategies.
(j) Following MPA boundary approval by the MPO and the Governor,
the MPA boundary descriptions shall be provided for informational
purposes to the FHWA and the FTA. The MPA boundary descriptions shall
be submitted either as a geo-spatial database or described in
sufficient detail to enable the boundaries to be accurately delineated
on a map.
Sec. 450.314 Metropolitan planning agreements.
(a) The MPO, the State(s), and the providers of public
transportation shall cooperatively determine their mutual
responsibilities in carrying out the metropolitan transportation
planning process. These responsibilities shall be clearly identified in
written agreements among the MPO, the State(s), and the providers of
public transportation serving the MPA. To the extent possible, a single
agreement between all responsible parties should be developed. The
written agreement(s) shall include specific provisions for
cooperatively developing and sharing information related to
transportation systems performance data, the selection of performance
targets, the reporting of performance targets, the reporting of system
performance to be used in tracking progress toward attainment of
critical outcomes for the region of the MPO (see Sec. 450.306(d)), the
collection of data for the asset management plans for the NHS, the
development of financial plans that support the metropolitan
transportation plan (see Sec. 450.324) and the metropolitan TIP (see
Sec. 450.326), and development of the annual listing of obligated
projects (see Sec. 450.334).
(b) The MPO, the State(s), and the providers of public
transportation should periodically review and update the agreement, as
appropriate, to reflect effective changes.
(c) If the MPA does not include the entire nonattainment or
maintenance area, there shall be a written agreement among the State
department of transportation, State air quality agency, affected local
agencies, and the MPO describing the process for cooperative planning
and analysis of all projects outside the MPA within the nonattainment
or maintenance area. The agreement must also indicate how the total
transportation-related emissions for the nonattainment or maintenance
area, including areas outside the MPA, will be treated for the purposes
of determining conformity in accordance with the EPA's transportation
conformity regulations (40 CFR part 93, subpart A). The agreement shall
address policy mechanisms for resolving conflicts concerning
transportation-related emissions that may arise between the MPA and the
portion of the
[[Page 31827]]
nonattainment or maintenance area outside the MPA.
(d) In nonattainment or maintenance areas, if the MPO is not the
designated agency for air quality planning under section 174 of the
Clean Air Act (42 U.S.C. 7504), there shall be a written agreement
between the MPO and the designated air quality planning agency
describing their respective roles and responsibilities for air quality
related transportation planning.
(e) If more than one MPO has been designated to serve an urbanized
area, there shall be a written agreement among the MPOs, the State(s),
and the public transportation operator(s) describing how the
metropolitan transportation planning processes will be coordinated to
assure the development of consistent metropolitan transportation plans
and TIPs across the MPA boundaries, particularly in cases in which a
proposed transportation investment extends across the boundaries of
more than one MPA. The written agreement shall include specific
provisions for cooperatively developing and sharing information related
to transportation systems performance data, the selection of
performance targets, the reporting of performance targets, the
reporting of system performance to be used in tracking progress toward
attainment of critical outcomes for the region of the MPO (see Sec.
450.306(d)), and the collection of data for the asset management plans
for the NHS. If any part of the urbanized area is a nonattainment or
maintenance area, the agreement also shall include State and local air
quality agencies. The metropolitan transportation planning processes
for affected MPOs should, to the maximum extent possible, reflect
coordinated data collection, analysis, and planning assumptions across
the MPAs. Alternatively, a single metropolitan transportation plan and/
or TIP for the entire urbanized area may be developed jointly by the
MPOs in cooperation with their respective planning partners.
Coordination efforts and outcomes shall be documented in subsequent
transmittals of the UPWP and other planning products, including the
metropolitan transportation plan and TIP, to the State(s), the FHWA,
and the FTA.
(f) Where the boundaries of the urbanized area or MPA extend across
two or more States, the Governors with responsibility for a portion of
the multistate area, the appropriate MPO(s), and the public
transportation operator(s) shall coordinate transportation planning for
the entire multistate area. States involved in such multistate
transportation planning may:
(1) Enter into agreements or compacts, not in conflict with any law
of the United States, for cooperative efforts and mutual assistance in
support of activities authorized under this section as the activities
pertain to interstate areas and localities within the States; and
(2) Establish such agencies, joint or otherwise, as the States may
determine desirable for making the agreements and compacts effective.
(g) If part of an urbanized area that has been designated as a TMA
overlaps into an adjacent MPA serving an urbanized area that is not
designated as a TMA, the adjacent urbanized area shall not be treated
as a TMA. However, a written agreement shall be established between the
MPOs with MPA boundaries including a portion of the TMA, which clearly
identifies the roles and responsibilities of each MPO in meeting
specific TMA requirements (e.g., congestion management process, Surface
Transportation Program funds suballocated to the urbanized area over
200,000 population, and project selection). The written agreement shall
include specific provisions for cooperatively developing and sharing
information related to transportation systems performance data, the
selection of performance targets, the reporting of performance targets,
the reporting of system performance to be used in tracking progress
toward attainment of critical outcomes for the region of the MPO (see
Sec. 450.306(d)), and the collection of data for the asset management
plans for the NHS.
Sec. 450.316 Interested parties, participation, and consultation.
(a) The MPO shall develop and use a documented participation plan
that defines a process for providing individuals, affected public
agencies, representatives of public transportation employees, freight
shippers, providers of freight transportation services, private
providers of transportation, representatives of users of public
transportation, representatives of users of pedestrian walkways and
bicycle transportation facilities, representatives of the disabled, and
other interested parties with reasonable opportunities to be involved
in the metropolitan transportation planning process.
(1) The MPO shall develop the participation plan in consultation
with all interested parties and shall, at a minimum, describe explicit
procedures, strategies, and desired outcomes for:
(i) Providing adequate public notice of public participation
activities and time for public review and comment at key decision
points, including a reasonable opportunity to comment on the proposed
metropolitan transportation plan and the TIP;
(ii) Providing timely notice and reasonable access to information
about transportation issues and processes;
(iii) Employing visualization techniques to describe metropolitan
transportation plans and TIPs;
(iv) Making public information (technical information and meeting
notices) available in electronically accessible formats and means, such
as the World Wide Web;
(v) Holding any public meetings at convenient and accessible
locations and times;
(vi) Demonstrating explicit consideration and response to public
input received during the development of the metropolitan
transportation plan and the TIP;
(vii) Seeking out and considering the needs of those traditionally
underserved by existing transportation systems, such as low-income and
minority households, who may face challenges accessing employment and
other services;
(viii) Providing an additional opportunity for public comment, if
the final metropolitan transportation plan or TIP differs significantly
from the version that was made available for public comment by the MPO
and raises new material issues that interested parties could not
reasonably have foreseen from the public involvement efforts;
(ix) Coordinating with the statewide transportation planning public
involvement and consultation processes under subpart B of this part;
and
(x) Periodically reviewing the effectiveness of the procedures and
strategies contained in the participation plan to ensure a full and
open participation process.
(2) When significant written and oral comments are received on the
draft metropolitan transportation plan and TIP (including the financial
plans) as a result of the participation process in this section or the
interagency consultation process required under the EPA transportation
conformity regulations (40 CFR part 93, subpart A), a summary,
analysis, and report on the disposition of comments shall be made as
part of the final metropolitan transportation plan and TIP.
(3) A minimum public comment period of 45 calendar days shall be
provided before the initial or revised participation plan is adopted by
the MPO. Copies of the approved participation plan shall be provided to
the FHWA and the FTA for informational purposes and shall be
[[Page 31828]]
posted on the World Wide Web, to the maximum extent practicable.
(b) In developing metropolitan transportation plans and TIPs, the
MPO should consult with agencies and officials responsible for other
planning activities within the MPA that are affected by transportation
(including State and local planned growth, economic development,
environmental protection, airport operations, or freight movements) or
coordinate its planning process (to the maximum extent practicable)
with such planning activities. In addition, the MPO shall develop the
metropolitan transportation plans and TIPs with due consideration of
other related planning activities within the metropolitan area, and the
process shall provide for the design and delivery of transportation
services within the area that are provided by:
(1) Recipients of assistance under title 49 U.S.C. Chapter 53;
(2) Governmental agencies and non-profit organizations (including
representatives of the agencies and organizations) that receive Federal
assistance from a source other than the U.S. Department of
Transportation to provide non-emergency transportation services; and
(3) Recipients of assistance under 23 U.S.C. 201-204.
(c) When the MPA includes Indian Tribal lands, the MPO shall
appropriately involve the Indian Tribal government(s) in the
development of the metropolitan transportation plan and the TIP.
(d) When the MPA includes Federal public lands, the MPO shall
appropriately involve the Federal land management agencies in the
development of the metropolitan transportation plan and the TIP.
(e) MPOs shall, to the extent practicable, develop a documented
process(es) that outlines roles, responsibilities, and key decision
points for consulting with other governments and agencies, as defined
in paragraphs (b), (c), and (d) of this section, which may be included
in the agreement(s) developed under Sec. 450.314.
Sec. 450.318 Transportation planning studies and project development.
(a) Pursuant to section 1308 of the Transportation Equity Act for
the 21st Century, TEA-21 (Pub. L. 105-178), an MPO(s), State(s), or
public transportation operator(s) may undertake a multimodal, systems-
level corridor or subarea planning study as part of the metropolitan
transportation planning process. To the extent practicable, development
of these transportation planning studies shall involve consultation
with, or joint efforts among, the MPO(s), State(s), and/or public
transportation operator(s). The results or decisions of these
transportation planning studies may be used as part of the overall
project development process consistent with the National Environmental
Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and associated
implementing regulations (23 CFR part 771 and 40 CFR parts 1500-1508).
Specifically, these corridor or subarea studies may result in producing
any of the following for a proposed transportation project:
(1) Purpose and need or goals and objective statement(s);
(2) General travel corridor and/or general mode(s) definition
(e.g., highway, transit, or a highway/transit combination);
(3) Preliminary screening of alternatives and elimination of
unreasonable alternatives;
(4) Basic description of the environmental setting; and/or
(5) Preliminary identification of environmental impacts and
environmental mitigation.
(b) Publicly available documents or other source material produced
by, or in support of, the transportation planning process described in
this subpart may be incorporated directly or by reference into
subsequent NEPA documents, in accordance with 40 CFR 1502.21, if:
(1) The NEPA lead agencies agree that such incorporation will aid
in establishing or evaluating the purpose and need for the Federal
action, reasonable alternatives, cumulative or other impacts on the
human and natural environment, or mitigation of these impacts; and
(2) The systems-level, corridor, or subarea planning study is
conducted with:
(i) Involvement of interested State, local, Tribal, and Federal
agencies;
(ii) Public review;
(iii) Reasonable opportunity to comment during the metropolitan
transportation planning process and development of the corridor or
subarea planning study;
(iv) Documentation of relevant decisions in a form that is
identifiable and available for review during the NEPA scoping process
and can be appended to or referenced in the NEPA document; and
(v) The review of the FHWA and the FTA, as appropriate.
(c) By agreement of the NEPA lead agencies, the above integration
may be accomplished through tiering (as described in 40 CFR 1502.20),
incorporating the subarea or corridor planning study into the draft
Environmental Impact Statement (EIS) or Environmental Assessment, or
other means that the NEPA lead agencies deem appropriate.
(d) Additional information to further explain the linkages between
the transportation planning and project development/NEPA processes is
contained in Appendix A to this part, including an explanation that it
is non-binding guidance material.
Sec. 450.320 Development of Programmatic Mitigation Plans.
(a) An MPO may develop programmatic mitigation plans to address the
potential environmental impacts of future transportation projects. The
MPO will determine the scope of the programmatic mitigation plan, in
consultation with the FHWA and/or the FTA and with the agency or
agencies with jurisdiction and special expertise over the resources
being addressed in the plan.
(1) Scope. (i) An MPO may develop a programmatic mitigation plan on
a local, regional, ecosystem, watershed, statewide or similar scale.
(ii) The plan may encompass multiple environmental resources within
a defined geographic area(s) or may focus on a specific type(s) of
resource(s) such as aquatic resources, parkland, or wildlife habitat.
(iii) The plan may address or consider impacts from all projects in
a defined geographic area(s) or may focus on a specific type(s) of
project(s).
(2) Contents. The programmatic mitigation plan may include:
(i) An assessment of the existing condition of natural and human
environmental resources within the area covered by the plan, including
an assessment of historic and recent trends and/or any potential
threats to those resources;
(ii) An identification of economic, social, and natural and human
environmental resources within the geographic area that may be impacted
and considered for mitigation. Examples of these resources include
wetlands, streams, rivers, stormwater, parklands, cultural resources,
historic resources, farmlands, and threatened or endangered species
critical habitat. This may include the identification of areas of high
conservation concern or value and thus worthy of avoidance;
(iii) An inventory of existing or planned environmental resource
banks for the impacted resource categories such as wetland, stream,
habitat, species, and an inventory of federally, State, or locally
approved in-lieu-of-fee programs;
[[Page 31829]]
(iv) An assessment of potential opportunities to improve the
overall quality of the identified environmental resources through
strategic mitigation for impacts of transportation projects which may
include the prioritization of parcels or areas for acquisition and/or
potential resource banking sites;
(v) An adoption or development of standard measures or operating
procedures for mitigating certain types of impacts; establishment of
parameters for determining or calculating appropriate mitigation for
certain types of impacts, such as mitigation ratios, or criteria for
determining appropriate mitigation sites;
(vi) Adaptive management procedures, such as protocols or
procedures that involve monitoring actual impacts against predicted
impacts over time and adjusting mitigation measures in response to
information gathered through the monitoring;
(vii) Acknowledgement of specific statutory or regulatory
requirements that must be satisfied when determining appropriate
mitigation for certain types of resources.
(b) If an MPO chooses to develop a programmatic mitigation plan
then the MPO shall develop it as part of the metropolitan
transportation planning process, considering the following process
prior to adopting a programmatic mitigation plan:
(1) Consult with each agency with jurisdiction over the
environmental resources considered in the programmatic mitigation plan;
(2) Make available a draft of the programmatic mitigation plan for
review and comment by appropriate environmental resource agencies and
the public;
(3) Consider comments received from such agencies and the public on
the draft plan; and
(4) Address such comments in the final programmatic mitigation
plan.
(c) A programmatic mitigation plan may be integrated with other
plans, including watershed plans, ecosystem plans, species recovery
plans, growth management plans, State Wildlife Action Plans, and land
use plans.
(d) If an MPO develops a programmatic mitigation plan pursuant to
this section, any Federal agency responsible for environmental reviews,
permits, or approvals for a transportation project may use the
recommendations in the programmatic mitigation plan when carrying out
its responsibilities under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) (NEPA) and any other environmental laws
and regulations.
(e) Nothing in this section limits the use of programmatic
approaches for reviews under NEPA.
Sec. 450.322 Congestion management process in transportation
management areas.
(a) The transportation planning process in a TMA shall address
congestion management through a process that provides for safe and
effective integrated management and operation of the multimodal
transportation system, based on a cooperatively developed and
implemented metropolitan-wide strategy, of new and existing
transportation facilities eligible for funding under title 23 U.S.C.
and title 49 U.S.C. Chapter 53 through the use of travel demand
reduction and operational management strategies.
(b) The development of a congestion management process should
result in multimodal system performance measures and strategies that
can be reflected in the metropolitan transportation plan and the TIP.
(c) The level of system performance deemed acceptable by State and
local transportation officials may vary by type of transportation
facility, geographic location (metropolitan area or subarea), and/or
time of day. In addition, consideration should be given to strategies
that manage demand, reduce single occupant vehicle (SOV) travel,
improve transportation system management and operations, and improve
efficient service integration within and across modes, including
highway, transit, passenger and freight rail operations, and non-
motorized transport. Where the addition of general purpose lanes is
determined to be an appropriate congestion management strategy,
explicit consideration is to be given to the incorporation of
appropriate features into the SOV project to facilitate future demand
management strategies and operational improvements that will maintain
the functional integrity and safety of those lanes.
(d) The congestion management process shall be developed,
established, and implemented as part of the metropolitan transportation
planning process that includes coordination with transportation system
management and operations activities. The congestion management process
shall include:
(1) Methods to monitor and evaluate the performance of the
multimodal transportation system, identify the underlying causes of
recurring and non-recurring congestion, identify and evaluate
alternative strategies, provide information supporting the
implementation of actions, and evaluate the effectiveness of
implemented actions;
(2) Definition of congestion management objectives and appropriate
performance measures to assess the extent of congestion and support the
evaluation of the effectiveness of congestion reduction and mobility
enhancement strategies for the movement of people and goods. Since
levels of acceptable system performance may vary among local
communities, performance measures should be tailored to the specific
needs of the area and established cooperatively by the State(s),
affected MPO(s), and local officials in consultation with the operators
of major modes of transportation in the coverage area, including
providers of public transportation;
(3) Establishment of a coordinated program for data collection and
system performance monitoring to define the extent and duration of
congestion, to contribute in determining the causes of congestion, and
evaluate the efficiency and effectiveness of implemented actions. To
the extent possible, this data collection program should be coordinated
with existing data sources (including archived operational/ITS data)
and coordinated with operations managers in the metropolitan area;
(4) Identification and evaluation of the anticipated performance
and expected benefits of appropriate congestion management strategies
that will contribute to the more effective use and improved safety of
existing and future transportation systems based on the established
performance measures. The following categories of strategies, or
combinations of strategies, are some examples of what should be
appropriately considered for each area:
(i) Demand management measures, including growth management, and
congestion pricing;
(ii) Traffic operational improvements;
(iii) Public transportation improvements;
(iv) ITS technologies as related to the regional ITS architecture;
and
(v) Where necessary, additional system capacity.
(5) Identification of an implementation schedule, implementation
responsibilities, and possible funding sources for each strategy (or
combination of strategies) proposed for implementation; and
(6) Implementation of a process for periodic assessment of the
effectiveness of implemented strategies, in terms of the area's
established performance
[[Page 31830]]
measures. The results of this evaluation shall be provided to decision
makers and the public to provide guidance on selection of effective
strategies for future implementation.
(e) In a TMA designated as nonattainment area for ozone or carbon
monoxide pursuant to the Clean Air Act, Federal funds may not be
programmed for any project that will result in a significant increase
in the carrying capacity for SOVs (i.e., a new general purpose highway
on a new location or adding general purpose lanes, with the exception
of safety improvements or the elimination of bottlenecks), unless the
project is addressed through a congestion management process meeting
the requirements of this section.
(f) In TMAs designated as nonattainment for ozone or carbon
monoxide, the congestion management process shall provide an
appropriate analysis of reasonable (including multimodal) travel demand
reduction and operational management strategies for the corridor in
which a project that will result in a significant increase in capacity
for SOVs (as described in paragraph (d) of this section) is proposed to
be advanced with Federal funds. If the analysis demonstrates that
travel demand reduction and operational management strategies cannot
fully satisfy the need for additional capacity in the corridor and
additional SOV capacity is warranted, then the congestion management
process shall identify all reasonable strategies to manage the SOV
facility safely and effectively (or to facilitate its management in the
future). Other travel demand reduction and operational management
strategies appropriate for the corridor, but not appropriate for
incorporation into the SOV facility itself, shall also be identified
through the congestion management process. All identified reasonable
travel demand reduction and operational management strategies shall be
incorporated into the SOV project or committed to by the State and MPO
for implementation.
(g) State laws, rules, or regulations pertaining to congestion
management systems or programs may constitute the congestion management
process, if the FHWA and the FTA find that the State laws, rules, or
regulations are consistent with, and fulfill the intent of, the
purposes of 23 U.S.C. 134 and 49 U.S.C. 5303.
Sec. 450.324 Development and content of the metropolitan
transportation plan.
(a) The metropolitan transportation planning process shall include
the development of a transportation plan addressing no less than a 20-
year planning horizon as of the effective date. In formulating the
transportation plan, the MPO shall consider factors described in Sec.
450.306 as the factors relate to a 20-year forecast period. In
nonattainment and maintenance areas, the effective date of the
transportation plan shall be the date of a conformity determination
issued by the FHWA and the FTA. In attainment areas, the effective date
of the transportation plan shall be its date of adoption by the MPO.
(b) The transportation plan shall include both long-range and
short-range strategies/actions that provide for the development of an
integrated multimodal transportation system (including accessible
pedestrian walkways and bicycle transportation facilities) to
facilitate the safe and efficient movement of people and goods in
addressing current and future transportation demand.
(c) The MPO shall review and update the transportation plan at
least every 4 years in air quality nonattainment and maintenance areas
and at least every 5 years in attainment areas to confirm the
transportation plan's validity and consistency with current and
forecasted transportation and land use conditions and trends and to
extend the forecast period to at least a 20-year planning horizon. In
addition, the MPO may revise the transportation plan at any time using
the procedures in this section without a requirement to extend the
horizon year. The MPO shall approve the transportation plan (and any
revisions) and submit it for information purposes to the Governor.
Copies of any updated or revised transportation plans must be provided
to the FHWA and the FTA.
(d) In metropolitan areas that are in nonattainment for ozone or
carbon monoxide, the MPO shall coordinate the development of the
metropolitan transportation plan with the process for developing
transportation control measures (TCMs) in a State Implementation Plan
(SIP).
(e) The MPO, the State(s), and the public transportation
operator(s) shall validate data used in preparing other existing modal
plans for providing input to the transportation plan. In updating the
transportation plan, the MPO shall base the update on the latest
available estimates and assumptions for population, land use, travel,
employment, congestion, and economic activity. The MPO shall approve
transportation plan contents and supporting analyses produced by a
transportation plan update.
(f) The metropolitan transportation plan shall, at a minimum,
include:
(1) The current and projected transportation demand of persons and
goods in the metropolitan planning area over the period of the
transportation plan;
(2) Existing and proposed transportation facilities (including
major roadways, transit, multimodal and intermodal facilities,
nonmotorized transportation facilities (e.g., pedestrian walkways and
bicycle facilities), and intermodal connectors) that should function as
an integrated metropolitan transportation system, giving emphasis to
those facilities that serve important national and regional
transportation functions over the period of the transportation plan;
(3) A description of the performance measures and performance
targets used in assessing the performance of the transportation system
in accordance with Sec. 450.306(d);
(4) A system performance report and subsequent updates evaluating
the condition and performance of the transportation system with respect
to the performance targets described in Sec. 450.306(d), including:
(i) Progress achieved by the metropolitan planning organization in
meeting the performance targets in comparison with system performance
recorded in previous reports, including baseline data; and
(ii) For metropolitan planning organizations that voluntarily elect
to develop multiple scenarios, an analysis of how the preferred
scenario has improved the conditions and performance of the
transportation system and how changes in local policies and investments
have impacted the costs necessary to achieve the identified performance
targets.
(5) Operational and management strategies to improve the
performance of existing transportation facilities to relieve vehicular
congestion and maximize the safety and mobility of people and goods;
(6) Consideration of the results of the congestion management
process in TMAs that meet the requirements of this subpart, including
the identification of SOV projects that result from a congestion
management process in TMAs that are nonattainment for ozone or carbon
monoxide;
(7) Assessment of capital investment and other strategies to
preserve the existing and projected future metropolitan transportation
infrastructure and provide for multimodal capacity increases based on
regional priorities and needs. The metropolitan transportation plan
should
[[Page 31831]]
be informed by the financial plan and investment strategies from the
State asset management plan for the NHS (as defined in 23 U.S.C.
119(e)) and investment priorities of the public transit asset
management plan(s) (as discussed in 49 U.S.C. 5326). The metropolitan
transportation plan may consider projects and strategies that address
areas or corridors where current or projected congestion threatens the
efficient functioning of key elements of the metropolitan area's
transportation system;
(8) Transportation and transit enhancement activities, including
transportation alternatives, as defined in 23 U.S.C. 101(a), and
associated transit improvements, as described in 49 U.S.C. 5302(a), as
appropriate;
(9) Design concept and design scope descriptions of all existing
and proposed transportation facilities in sufficient detail, regardless
of funding source, in nonattainment and maintenance areas for
conformity determinations under the EPA's transportation conformity
regulations (40 CFR part 93, subpart A). In all areas (regardless of
air quality designation), all proposed improvements shall be described
in sufficient detail to develop cost estimates;
(10) A discussion of types of potential environmental mitigation
activities and potential areas to carry out these activities, including
activities that may have the greatest potential to restore and maintain
the environmental functions affected by the metropolitan transportation
plan. The discussion may focus on policies, programs, or strategies,
rather than at the project level. The MPO shall develop the discussion
in consultation with Federal, State, and Tribal land management,
wildlife, and regulatory agencies. The MPO may establish reasonable
timeframes for performing this consultation;
(11) A financial plan that demonstrates how the adopted
transportation plan can be implemented;
(i) For purposes of transportation system operations and
maintenance, the financial plan shall contain system-level estimates of
costs and revenue sources that are reasonably expected to be available
to adequately operate and maintain the Federal-aid highways (as defined
by 23 U.S.C. 101(a)(5)) and public transportation (as defined by title
49 U.S.C. Chapter 53).
(ii) For the purpose of developing the metropolitan transportation
plan, the MPO, public transportation operator(s), and State shall
cooperatively develop estimates of funds that will be available to
support metropolitan transportation plan implementation, as required
under Sec. 450.314(a). All necessary financial resources from public
and private sources that are reasonably expected to be made available
to carry out the transportation plan shall be identified.
(iii) The financial plan shall include recommendations on any
additional financing strategies to fund projects and programs included
in the metropolitan transportation plan. In the case of new funding
sources, strategies for ensuring their availability shall be
identified. The financial plan may include an assessment of the
appropriateness of innovative finance techniques (for example, tolling,
pricing, bonding, public private partnerships, or other strategies) as
revenue sources for projects in the plan.
(iv) In developing the financial plan, the MPO shall take into
account all projects and strategies proposed for funding under title 23
U.S.C., title 49 U.S.C. Chapter 53 or with other Federal funds; State
assistance; local sources; and private participation. Revenue and cost
estimates that support the metropolitan transportation plan must use an
inflation rate(s) to reflect ``year of expenditure dollars,'' based on
reasonable financial principles and information, developed
cooperatively by the MPO, State(s), and public transportation
operator(s).
(v) For the outer years of the metropolitan transportation plan
(i.e., beyond the first 10 years), the financial plan may reflect
aggregate cost ranges/cost bands, as long as the future funding
source(s) is reasonably expected to be available to support the
projected cost ranges/cost bands.
(vi) For nonattainment and maintenance areas, the financial plan
shall address the specific financial strategies required to ensure the
implementation of TCMs in the applicable SIP.
(vii) For illustrative purposes, the financial plan may include
additional projects that would be included in the adopted
transportation plan if additional resources beyond those identified in
the financial plan were to become available.
(viii) In cases that the FHWA and the FTA find a metropolitan
transportation plan to be fiscally constrained and a revenue source is
subsequently removed or substantially reduced (i.e., by legislative or
administrative actions), the FHWA and the FTA will not withdraw the
original determination of fiscal constraint; however, in such cases,
the FHWA and the FTA will not act on an updated or amended metropolitan
transportation plan that does not reflect the changed revenue
situation; and
(12) Pedestrian walkway and bicycle transportation facilities in
accordance with 23 U.S.C. 217(g).
(g) The MPO shall consult, as appropriate, with State and local
agencies responsible for land use management, natural resources,
environmental protection, conservation, and historic preservation
concerning the development of the transportation plan. The consultation
shall involve, as appropriate:
(1) Comparison of transportation plans with State conservation
plans or maps, if available; or
(2) Comparison of transportation plans to inventories of natural or
historic resources, if available.
(h) The metropolitan transportation plan should integrate the
priorities, goals, countermeasures, strategies, or projects for the
metropolitan planning area contained in the HSIP, including the SHSP
required under 23 U.S.C. 148, the Public Transportation Agency Safety
Plan required under 49 U.S.C. 5329(d), or an Interim Agency Safety Plan
in accordance with 49 CFR part 659, as in effect until completion of
the Public Transportation Agency Safety Plan, and may incorporate or
reference applicable emergency relief and disaster preparedness plans
and strategies and policies that support homeland security, as
appropriate, to safeguard the personal security of all motorized and
non-motorized users.
(i) An MPO may, while fitting the needs and complexity of its
community, voluntarily elect to develop multiple scenarios for
consideration as part of the development of the metropolitan
transportation plan.
(1) An MPO that chooses to develop multiple scenarios under this
paragraph (i) is encouraged to consider:
(i) Potential regional investment strategies for the planning
horizon;
(ii) Assumed distribution of population and employment;
(iii) A scenario that, to the maximum extent practicable, maintains
baseline conditions for the performance areas identified in Sec.
450.306(d) and measures established under 23 CFR part 490;
(iv) A scenario that improves the baseline conditions for as many
of the performance measures identified in Sec. 450.306(d) as possible;
(v) Revenue constrained scenarios based on the total revenues
expected to be available over the forecast period of the plan; and
(vi) Estimated costs and potential revenues available to support
each scenario.
[[Page 31832]]
(2) In addition to the performance areas identified in section 23
U.S.C. 150(c), 49 U.S.C. 5326(c), and 5329(d), and the measures
established under 23 CFR part 490, MPOs may evaluate scenarios
developed under this paragraph using locally developed measures.
(j) The MPO shall provide individuals, affected public agencies,
representatives of public transportation employees, freight shippers,
providers of freight transportation services, private providers of
transportation, representatives of users of public transportation,
representatives of users of pedestrian walkways and bicycle
transportation facilities, representatives of the disabled, and other
interested parties with a reasonable opportunity to comment on the
transportation plan using the participation plan developed under Sec.
450.316(a).
(k) The MPO shall publish or otherwise make readily available the
metropolitan transportation plan for public review, including (to the
maximum extent practicable) in electronically accessible formats and
means, such as the World Wide Web.
(l) A State or MPO is not required to select any project from the
illustrative list of additional projects included in the financial plan
under paragraph (f)(11) of this section.
(m) In nonattainment and maintenance areas for transportation-
related pollutants, the MPO, as well as the FHWA and the FTA, must make
a conformity determination on any updated or amended transportation
plan in accordance with the Clean Air Act and the EPA transportation
conformity regulations (40 CFR part 93, subpart A). A 12-month
conformity lapse grace period will be implemented when an area misses
an applicable deadline, in accordance with the Clean Air Act and the
transportation conformity regulations (40 CFR part 93, subpart A). At
the end of this 12-month grace period, the existing conformity
determination will lapse. During a conformity lapse, MPOs can prepare
an interim metropolitan transportation plan as a basis for advancing
projects that are eligible to proceed under a conformity lapse. An
interim metropolitan transportation plan consisting of eligible
projects from, or consistent with, the most recent conforming
transportation plan and TIP may proceed immediately without revisiting
the requirements of this section, subject to interagency consultation
defined in 40 CFR part 93, subpart A. An interim metropolitan
transportation plan containing eligible projects that are not from, or
consistent with, the most recent conforming transportation plan and TIP
must meet all the requirements of this section.
Sec. 450.326 Development and content of the transportation
improvement program (TIP).
(a) The MPO, in cooperation with the State(s) and any affected
public transportation operator(s), shall develop a TIP for the
metropolitan planning area. The TIP shall reflect the investment
priorities established in the current metropolitan transportation plan
and shall cover a period of no less than 4 years, be updated at least
every 4 years, and be approved by the MPO and the Governor. However, if
the TIP covers more than 4 years, the FHWA and the FTA will consider
the projects in the additional years as informational. The MPO may
update the TIP more frequently, but the cycle for updating the TIP must
be compatible with the STIP development and approval process. The TIP
expires when the FHWA/FTA approval of the STIP expires. Copies of any
updated or revised TIPs must be provided to the FHWA and the FTA. In
nonattainment and maintenance areas subject to transportation
conformity requirements, the FHWA and the FTA, as well as the MPO, must
make a conformity determination on any updated or amended TIP, in
accordance with the Clean Air Act requirements and the EPA's
transportation conformity regulations (40 CFR part 93, subpart A).
(b) The MPO shall provide all interested parties with a reasonable
opportunity to comment on the proposed TIP as required by Sec.
450.316(a). In addition, in nonattainment area TMAs, the MPO shall
provide at least one formal public meeting during the TIP development
process, which should be addressed through the participation plan
described in Sec. 450.316(a). In addition, the MPO shall publish or
otherwise make readily available the TIP for public review, including
(to the maximum extent practicable) in electronically accessible
formats and means, such as the World Wide Web, as described in Sec.
450.316(a).
(c) The TIP shall be designed such that once implemented, it makes
progress toward achieving the performance targets established under
Sec. 450.306(d).
(d) The TIP shall include, to the maximum extent practicable, a
description of the anticipated effect of the TIP toward achieving the
performance targets identified in the metropolitan transportation plan,
linking investment priorities to those performance targets. This
discussion should be consistent with the strategies to achieve targets
presented in the metropolitan transportation plan and other performance
management plans such as the highway and transit asset management
plans, the SHSP, the public transportation agency safety plan, the CMAQ
performance plan, and if one exists, the State freight plan.
(e) The TIP shall include capital and non-capital surface
transportation projects (or phases of projects) within the boundaries
of the metropolitan planning area proposed for funding under 23 U.S.C.
and 49 U.S.C. Chapter 53 (including transportation alternatives;
associated transit improvements; Tribal Transportation Program, Federal
Lands Transportation Program, and Federal Lands Access Program
projects; HSIP projects; trails projects; accessible pedestrian
walkways; and bicycle facilities), except the following that may be
included:
(1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
(2) Metropolitan planning projects funded under 23 U.S.C. 104(d),
and 49 U.S.C. 5305(d);
(3) State planning and research projects funded under 23 U.S.C. 505
and 49 U.S.C. 5305(e);
(4) At the discretion of the State and MPO, metropolitan planning
projects funded with Surface Transportation Program funds;
(5) Emergency relief projects (except those involving substantial
functional, locational, or capacity changes);
(6) National planning and research projects funded under 49 U.S.C.
5314; and
(7) Project management oversight projects funded under 49 U.S.C.
5327.
(f) The TIP shall contain all regionally significant projects
requiring an action by the FHWA or the FTA whether or not the projects
are to be funded under title 23 U.S.C. Chapters 1 and 2 or title 49
U.S.C. Chapter 53 (e.g., addition of an interchange to the Interstate
System with State, local, and/or private funds and congressionally
designated projects not funded under 23 U.S.C. or 49 U.S.C. Chapter
53). For public information and conformity purposes, the TIP shall
include all regionally significant projects proposed to be funded with
Federal funds other than those administered by the FHWA or the FTA, as
well as all regionally significant projects to be funded with non-
Federal funds.
(g) The TIP shall include, for each project or phase (e.g.,
preliminary engineering, environment/NEPA, right-of-way, design, or
construction), the following:
[[Page 31833]]
(1) Sufficient descriptive material (i.e., type of work, termini,
and length) to identify the project or phase;
(2) Estimated total project cost, which may extend beyond the 4
years of the TIP;
(3) The amount of Federal funds proposed to be obligated during
each program year for the project or phase (for the first year, this
includes the proposed category of Federal funds and source(s) of non-
Federal funds. For the second, third, and fourth years, this includes
the likely category or possible categories of Federal funds and sources
of non-Federal funds);
(4) Identification of the agencies responsible for carrying out the
project or phase;
(5) In nonattainment and maintenance areas, identification of those
projects that are identified as TCMs in the applicable SIP;
(6) In nonattainment and maintenance areas, included projects shall
be specified in sufficient detail (design concept and scope) for air
quality analysis in accordance with the EPA transportation conformity
regulations (40 CFR part 93, subpart A); and
(7) In areas with Americans with Disabilities Act required
paratransit and key station plans, identification of those projects
that will implement these plans.
(h) Projects that are not considered to be of appropriate scale for
individual identification in a given program year may be grouped by
function, work type, and/or geographic area using the applicable
classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93.
In nonattainment and maintenance areas, project classifications must be
consistent with the ``exempt project'' classifications contained in the
EPA transportation conformity regulations (40 CFR part 93, subpart A).
In addition, projects proposed for funding under title 23 U.S.C.
Chapter 2 that are not regionally significant may be grouped in one
line item or identified individually in the TIP.
(i) Each project or project phase included in the TIP shall be
consistent with the approved metropolitan transportation plan.
(j) The TIP shall include a financial plan that demonstrates how
the approved TIP can be implemented, indicates resources from public
and private sources that are reasonably expected to be made available
to carry out the TIP, and recommends any additional financing
strategies for needed projects and programs. In developing the TIP, the
MPO, State(s), and public transportation operator(s) shall
cooperatively develop estimates of funds that are reasonably expected
to be available to support TIP implementation in accordance with Sec.
450.314(a). Only projects for which construction or operating funds can
reasonably be expected to be available may be included. In the case of
new funding sources, strategies for ensuring their availability shall
be identified. In developing the financial plan, the MPO shall take
into account all projects and strategies funded under title 23 U.S.C.,
title 49 U.S.C. Chapter 53, and other Federal funds; and regionally
significant projects that are not federally funded. For purposes of
transportation operations and maintenance, the financial plan shall
contain system-level estimates of costs and revenue sources that are
reasonably expected to be available to adequately operate and maintain
Federal-aid highways (as defined by 23 U.S.C. 101(a)(6)) and public
transportation (as defined by title 49 U.S.C. Chapter 53). In addition,
for illustrative purposes, the financial plan may include additional
projects that would be included in the TIP if reasonable additional
resources beyond those identified in the financial plan were to become
available. Revenue and cost estimates for the TIP must use an inflation
rate(s) to reflect ``year of expenditure dollars,'' based on reasonable
financial principles and information, developed cooperatively by the
MPO, State(s), and public transportation operator(s).
(k) The TIP shall include a project, or a phase of a project, only
if full funding can reasonably be anticipated to be available for the
project within the time period contemplated for completion of the
project. In nonattainment and maintenance areas, projects included in
the first 2 years of the TIP shall be limited to those for which funds
are available or committed. For the TIP, financial constraint shall be
demonstrated and maintained by year and shall include sufficient
financial information to demonstrate which projects are to be
implemented using current and/or reasonably available revenues, while
federally supported facilities are being adequately operated and
maintained. In the case of proposed funding sources, strategies for
ensuring their availability shall be identified in the financial plan
consistent with paragraph (h) of this section. In nonattainment and
maintenance areas, the TIP shall give priority to eligible TCMs
identified in the approved SIP in accordance with the EPA
transportation conformity regulations (40 CFR part 93, subpart A) and
shall provide for their timely implementation.
(l) In cases that the FHWA and the FTA find a TIP to be fiscally
constrained and a revenue source is subsequently removed or
substantially reduced (i.e., by legislative or administrative actions),
the FHWA and the FTA will not withdraw the original determination of
fiscal constraint. However, in such cases, the FHWA and the FTA will
not act on an updated or amended TIP that does not reflect the changed
revenue situation.
(m) The metropolitan TIP should be informed by the financial plan
and investment strategies from the State asset management plan for the
NHS (as defined in 23 U.S.C. 119(e)) and by the public transit asset
management plan(s) (as discussed in 49 U.S.C. 5326).
(n) Procedures or agreements that distribute suballocated Surface
Transportation Program funds or funds under 49 U.S.C. 5307 to
individual jurisdictions or modes within the MPA by pre-determined
percentages or formulas are inconsistent with the legislative
provisions that require the MPO, in cooperation with the State and the
public transportation operator, to develop a prioritized and
financially constrained TIP and shall not be used unless they can be
clearly shown to be based on considerations required to be addressed as
part of the metropolitan transportation planning process.
(o) As a management tool for monitoring progress in implementing
the transportation plan, the TIP should:
(1) Identify the criteria and process for prioritizing
implementation of transportation plan elements (including multimodal
trade-offs) for inclusion in the TIP and any changes in priorities from
previous TIPs;
(2) List major projects from the previous TIP that were implemented
and identify any significant delays in the planned implementation of
major projects; and
(3) In nonattainment and maintenance areas, describe the progress
in implementing any required TCMs, in accordance with 40 CFR part 93.
(p) In metropolitan nonattainment and maintenance areas, a 12-month
conformity lapse grace period will be implemented when an area misses
an applicable deadline, according to the Clean Air Act and the
transportation conformity regulations (40 CFR part 93, subpart A). At
the end of this 12-month grace period, the existing conformity
determination will lapse. During a conformity lapse, MPOs may prepare
an interim TIP as a basis for advancing projects that are eligible to
proceed under a conformity lapse. An interim TIP consisting of eligible
projects from, or consistent with, the most recent
[[Page 31834]]
conforming metropolitan transportation plan and TIP may proceed
immediately without revisiting the requirements of this section,
subject to interagency consultation defined in 40 CFR part 93. An
interim TIP containing eligible projects that are not from, or
consistent with, the most recent conforming transportation plan and TIP
must meet all the requirements of this section.
(q) Projects in any of the first 4 years of the TIP may be advanced
in place of another project in the first 4 years of the TIP, subject to
the project selection requirements of Sec. 450.332. In addition, the
MPO may revise the TIP at any time under procedures agreed to by the
State, MPO(s), and public transportation operator(s) consistent with
the TIP development procedures established in this section, as well as
the procedures for the MPO participation plan (see Sec. 450.316(a))
and FHWA/FTA actions on the TIP (see Sec. 450.330).
Sec. 450.328 TIP revisions and relationship to the STIP.
(a) An MPO may revise the TIP at any time under procedures agreed
to by the cooperating parties consistent with the procedures
established in this part for its development and approval. In
nonattainment or maintenance areas for transportation-related
pollutants, if a TIP amendment involves non-exempt projects (per 40 CFR
part 93), or is replaced with an updated TIP, the MPO and the FHWA and
the FTA must make a new conformity determination. In all areas, changes
that affect fiscal constraint must take place by amendment of the TIP.
The MPO shall use public participation procedures consistent with Sec.
450.316(a) in revising the TIP, except that these procedures are not
required for administrative modifications.
(b) After approval by the MPO and the Governor, the State shall
include the TIP without change, directly or by reference, in the STIP
required under 23 U.S.C. 135. In nonattainment and maintenance areas,
the FHWA and the FTA must make a conformity finding on the TIP before
it is included in the STIP. A copy of the approved TIP shall be
provided to the FHWA and the FTA.
(c) The State shall notify the MPO and Federal land management
agencies when it has included a TIP including projects under the
jurisdiction of these agencies in the STIP.
Sec. 450.330 TIP action by the FHWA and the FTA.
(a) The FHWA and the FTA shall jointly find that each metropolitan
TIP is consistent with the metropolitan transportation plan produced by
the continuing and comprehensive transportation process carried on
cooperatively by the MPO(s), the State(s), and the public
transportation operator(s) in accordance with 23 U.S.C. 134 and 49
U.S.C. 5303. This finding shall be based on the self-certification
statement submitted by the State and MPO under Sec. 450.336, a review
of the metropolitan transportation plan by the FHWA and the FTA, and
upon other reviews as deemed necessary by the FHWA and the FTA.
(b) In nonattainment and maintenance areas, the MPO, as well as the
FHWA and the FTA, shall determine conformity of any updated or amended
TIP, in accordance with 40 CFR part 93. After the FHWA and the FTA
issue a conformity determination on the TIP, the TIP shall be
incorporated, without change, into the STIP, directly or by reference.
(c) If an MPO has not updated the metropolitan transportation plan
in accordance with the cycles defined in Sec. 450.324(c), projects may
only be advanced from a TIP that was approved and found to conform (in
nonattainment and maintenance areas) prior to expiration of the
metropolitan transportation plan and meets the TIP update requirements
of Sec. 450.326(a). Until the MPO approves (in attainment areas) or
the FHWA and the FTA issue a conformity determination on (in
nonattainment and maintenance areas) the updated metropolitan
transportation plan, the MPO may not amend the TIP.
(d) In the case of extenuating circumstances, the FHWA and the FTA
will consider and take appropriate action on requests to extend the
STIP approval period for all or part of the TIP in accordance with
Sec. 450.220(b).
(e) If an illustrative project is included in the TIP, no Federal
action may be taken on that project by the FHWA and the FTA until it is
formally included in the financially constrained and conforming
metropolitan transportation plan and TIP.
(f) Where necessary in order to maintain or establish operations,
the FHWA and the FTA may approve highway and transit operating
assistance for specific projects or programs, even though the projects
or programs may not be included in an approved TIP.
Sec. 450.332 Project selection from the TIP.
(a) Once a TIP that meets the requirements of 23 U.S.C. 134(j), 49
U.S.C. 5303(j), and Sec. 450.326 has been developed and approved, the
first year of the TIP will constitute an ``agreed to'' list of projects
for project selection purposes and no further project selection action
is required for the implementing agency to proceed with projects,
except where the appropriated Federal funds available to the
metropolitan planning area are significantly less than the authorized
amounts or where there are significant shifting of projects between
years. In this case, the MPO, the State, and the public transportation
operator(s) if requested by the MPO, the State, or the public
transportation operator(s) shall jointly develop a revised ``agreed
to'' list of projects. If the State or public transportation
operator(s) wishes to proceed with a project in the second, third, or
fourth year of the TIP, the specific project selection procedures
stated in paragraphs (b) and (c) of this section must be used unless
the MPO, the State, and the public transportation operator(s) jointly
develop expedited project selection procedures to provide for the
advancement of projects from the second, third, or fourth years of the
TIP.
(b) In metropolitan areas not designated as TMAs, the State and/or
the public transportation operator(s), in cooperation with the MPO
shall select projects to be implemented using title 23 U.S.C. funds
(other than Tribal Transportation Program, Federal Lands Transportation
Program, and Federal Lands Access Program projects) or funds under
title 49 U.S.C. Chapter 53, from the approved metropolitan TIP. Tribal
Transportation Program, Federal Lands Transportation Program, and
Federal Lands Access Program projects shall be selected in accordance
with procedures developed pursuant to 23 U.S.C. 201, 202, 203, and 204.
(c) In areas designated as TMAs, the MPO shall select all 23 U.S.C.
and 49 U.S.C. Chapter 53 funded projects (excluding projects on the NHS
and Tribal Transportation Program, Federal Lands Transportation
Program, and Federal Lands Access Program) in consultation with the
State and public transportation operator(s) from the approved TIP and
in accordance with the priorities in the approved TIP. The State shall
select projects on the NHS in cooperation with the MPO, from the
approved TIP. Tribal Transportation Program, Federal Lands
Transportation Program, and Federal Lands Access Program projects shall
be selected in accordance with procedures developed pursuant to 23
U.S.C. 201, 202, 203, and 204.
(d) Except as provided in Sec. 450.326(e) and Sec. 450.330(f),
projects not included in the federally approved STIP are not eligible
for funding with funds under title 23 U.S.C. or 49 U.S.C. Chapter 53.
(e) In nonattainment and maintenance areas, priority shall be given
to the timely implementation of TCMs
[[Page 31835]]
contained in the applicable SIP in accordance with the EPA
transportation conformity regulations (40 CFR part 93, subpart A).
Sec. 450.334 Annual listing of obligated projects.
(a) In metropolitan planning areas, on an annual basis, no later
than 90 calendar days following the end of the program year, the State,
public transportation operator(s), and the MPO shall cooperatively
develop a listing of projects (including investments in pedestrian
walkways and bicycle transportation facilities) for which funds under
23 U.S.C. or 49 U.S.C. Chapter 53 were obligated in the preceding
program year.
(b) The listing shall be prepared in accordance with Sec.
450.314(a) and shall include all federally funded projects authorized
or revised to increase obligations in the preceding program year, and
shall at a minimum include the TIP information under Sec.
450.326(g)(1) and (4) and identify, for each project, the amount of
Federal funds requested in the TIP, the Federal funding that was
obligated during the preceding year, and the Federal funding remaining
and available for subsequent years.
(c) The listing shall be published or otherwise made available in
accordance with the MPO's public participation criteria for the TIP.
Sec. 450.336 Self-certifications and Federal certifications.
(a) For all MPAs, concurrent with the submittal of the entire
proposed TIP to the FHWA and the FTA as part of the STIP approval, the
State and the MPO shall certify at least every 4 years that the
metropolitan transportation planning process is being carried out in
accordance with all applicable requirements including:
(1) 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart;
(2) In nonattainment and maintenance areas, sections 174 and 176(c)
and (d) of the Clean Air Act, as amended (42 U.S.C. 7504, 7506(c) and
(d)) and 40 CFR part 93;
(3) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d-1) and 49 CFR part 21;
(4) 49 U.S.C. 5332, prohibiting discrimination on the basis of
race, color, creed, national origin, sex, or age in employment or
business opportunity;
(5) Section 1101(b) of MAP-21 (Pub. L. 112-141) and 49 CFR part 26
regarding the involvement of disadvantaged business enterprises in DOT
funded projects;
(6) 23 CFR part 230, regarding the implementation of an equal
employment opportunity program on Federal and Federal-aid highway
construction contracts;
(7) The provisions of the Americans with Disabilities Act of 1990
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
(8) The Older Americans Act, as amended (42 U.S.C. 6101),
prohibiting discrimination on the basis of age in programs or
activities receiving Federal financial assistance;
(9) Section 324 of title 23 U.S.C. regarding the prohibition of
discrimination based on gender; and
(10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)
and 49 CFR part 27 regarding discrimination against individuals with
disabilities.
(b) In TMAs, the FHWA and the FTA jointly shall review and evaluate
the transportation planning process for each TMA no less than once
every 4 years to determine if the process meets the requirements of
applicable provisions of Federal law and this subpart.
(1) After review and evaluation of the TMA planning process, the
FHWA and FTA shall take one of the following actions:
(i) If the process meets the requirements of this part and the MPO
and the Governor have approved a TIP, jointly certify the
transportation planning process;
(ii) If the process substantially meets the requirements of this
part and the MPO and the Governor have approved a TIP, jointly certify
the transportation planning process subject to certain specified
corrective actions being taken; or
(iii) If the process does not meet the requirements of this part,
jointly certify the planning process as the basis for approval of only
those categories of programs or projects that the FHWA and the FTA
jointly determine, subject to certain specified corrective actions
being taken.
(2) If, upon the review and evaluation conducted under paragraph
(b)(1)(iii) of this section, the FHWA and the FTA do not certify the
transportation planning process in a TMA, the Secretary may withhold up
to 20 percent of the funds attributable to the metropolitan planning
area of the MPO for projects funded under title 23 U.S.C. and title 49
U.S.C. Chapter 53 in addition to corrective actions and funding
restrictions. The withheld funds shall be restored to the MPA when the
metropolitan transportation planning process is certified by the FHWA
and FTA, unless the funds have lapsed.
(3) A certification of the TMA planning process will remain in
effect for 4 years unless a new certification determination is made
sooner by the FHWA and the FTA or a shorter term is specified in the
certification report.
(4) In conducting a certification review, the FHWA and the FTA
shall provide opportunities for public involvement within the
metropolitan planning area under review. The FHWA and the FTA shall
consider the public input received in arriving at a decision on a
certification action.
(5) The FHWA and the FTA shall notify the MPO(s), the State(s), and
public transportation operator(s) of the actions taken under paragraphs
(b)(1) and (2) of this section. The FHWA and the FTA will update the
certification status of the TMA when evidence of satisfactory
completion of a corrective action(s) is provided to the FHWA and the
FTA.
Sec. 450.338 Applicability of NEPA to metropolitan transportation
plans and programs.
Any decision by the Secretary concerning a metropolitan
transportation plan or TIP developed through the processes provided for
in 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart shall not be
considered to be a Federal action subject to review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
Sec. 450.340 Phase-in of new requirements.
(a) Prior [2 years after the publication date of the final rule],
an MPO may adopt a metropolitan transportation plan that has been
developed using the SAFETEA-LU requirements or the provisions and
requirements of this part. On or after [2 years after the publication
date of the final rule], an MPO may not adopt a metropolitan
transportation plan that has not been developed according to the
provisions and requirements of this part.
(b) Prior [2 years after the publication date of the final rule],
FHWA/FTA may determine the conformity of, or approve as part of a STIP,
a TIP that has been developed using SAFETEA-LU requirements or the
provisions and requirements of this part. On or after [2 years after
the publication date of the final rule], FHWA/FTA may only determine
the conformity of, or approve as part of a STIP, a TIP that has been
developed according to the provisions and requirements of this part,
regardless of when the MPO developed the TIP.
(c) On and after [2 years after the publication date of the final
rule], the FHWA and the FTA will take action (i.e., conformity
determinations and STIP approvals) on an updated or amended TIP
developed under the provisions of this part, even if the MPO
[[Page 31836]]
has not yet adopted a new metropolitan transportation plan under the
provisions of this part, as long as the underlying transportation
planning process is consistent with the requirements in the MAP-21.
(d) On or after [2 years after the publication date of the final
rule], an MPO may make an administrative modification to a TIP that
conforms to either the SAFETEA-LU or to the provisions and requirements
of this part.
(e) Two years from the effective date of each rule establishing
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, and 49
U.S.C. 5329 FHWA/FTA will only determine the conformity of, or approve
as part of a STIP, a TIP that is based on a metropolitan transportation
planning process that meets the performance-based planning requirements
in this part and in such a rule.
(f) Prior to 2 years from the effective date of each rule
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C.
5326, or 49 U.S.C. 5329, an MPO may adopt a metropolitan transportation
plan that has been developed using the SAFETEA-LU requirements or the
performance-based planning requirements of this part and in such a
rule. Two years on or after the effective date of each rule
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C.
5326, or 49 U.S.C. 5329, an MPO may only adopt a metropolitan
transportation plan that has been developed according to the
performance-based provisions and requirements of this part and in such
a rule.
(g) A newly designated TMA shall implement the congestion
management process described in Sec. 450.322 within 18 months of
designation.
Appendix A to Part 450--Linking the Transportation Planning and NEPA
Processes
Background and Overview
This Appendix provides additional information to explain the
linkage between the transportation planning and project development/
National Environmental Policy Act (NEPA) processes. It is intended
to be non-binding and should not be construed as a rule of general
applicability.
For 40 years, the Congress has directed that federally-funded
highway and transit projects must flow from metropolitan and
statewide transportation planning processes (pursuant to 23 U.S.C.
134-135 and 49 U.S.C. 5303-5306). Over the years, the Congress has
refined and strengthened the transportation planning process as the
foundation for project decisions, emphasizing public involvement,
consideration of environmental and other factors, and a Federal role
that oversees the transportation planning process but does not
second-guess the content of transportation plans and programs.
Despite this statutory emphasis on transportation planning, the
environmental analyses produced to meet the requirements of the NEPA
of 1969 (42 U.S.C. 4231 et seq.) have often been conducted de novo,
disconnected from the analyses used to develop long-range
transportation plans, statewide and metropolitan Transportation
Improvement Programs (STIPs/TIPs), or planning-level corridor/
subarea/feasibility studies. When the NEPA and transportation
planning processes are not well coordinated, the NEPA process may
lead to the development of information that is more appropriately
developed in the planning process, resulting in duplication of work
and delays in transportation improvements.
The purpose of this Appendix is to change this culture, by
supporting congressional intent that statewide and metropolitan
transportation planning should be the foundation for highway and
transit project decisions. This Appendix was crafted to recognize
that transportation planning processes vary across the country. This
document provides details on how information, analysis, and products
from transportation planning can be incorporated into and relied
upon in NEPA documents under existing laws, regardless of when the
Notice of Intent has been published. This Appendix presents
environmental review as a continuum of sequential study, refinement,
and expansion performed in transportation planning and during
project development/NEPA, with information developed and conclusions
drawn in early stages utilized in subsequent (and more detailed)
review stages.
The information below is intended for use by State departments
of transportation (State DOTs), metropolitan planning organizations
(MPOs), and public transportation operators to clarify the
circumstances under which transportation planning level choices and
analyses can be adopted or incorporated into the process required by
NEPA. Additionally, the FHWA and the FTA will work with Federal
environmental, regulatory, and resource agencies to incorporate the
principles of this Appendix in their day-to-day NEPA policies and
procedures related to their involvement in highway and transit
projects.
This Appendix does not extend NEPA requirements to
transportation plans and programs. The Transportation Efficiency Act
for the 21st Century (TEA-21) and the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
specifically exempted transportation plans and programs from NEPA
review. Therefore, initiating the NEPA process as part of, or
concurrently with, a transportation planning study does not subject
transportation plans and programs to NEPA.
Implementation of this Appendix by States, MPOs, and public
transportation operators is voluntary. The degree to which studies,
analyses, or conclusions from the transportation planning process
can be incorporated into the project development/NEPA processes will
depend upon how well they meet certain standards established by NEPA
regulations and guidance. While some transportation planning
processes already meet these standards, others will need some
modification.
The remainder of this Appendix document utilizes a ``Question
and Answer'' format, organized into three primary categories
(``Procedural Issues,'' ``Substantive Issues,'' and ``Administrative
Issues'').
I. Procedural Issues
1. In what format should the transportation planning information be
included?
To be included in the NEPA process, work from the transportation
planning process must be documented in a form that can be appended
to the NEPA document or incorporated by reference. Documents may be
incorporated by reference if they are readily available so as to not
impede agency or public review of the action. Any document
incorporated by reference must be ``reasonably available for
inspection by potentially interested persons within the time allowed
for comment.'' Incorporated materials must be cited in the NEPA
document and their contents briefly described, so that the reader
understands why the document is cited and knows where to look for
further information. To the extent possible, the documentation
should be in a form such as official actions by the MPO, State DOT,
or public transportation operator and/or correspondence within and
among the organizations involved in the transportation planning
process.
2. What is a reasonable level of detail for a planning product that
is intended to be used in a NEPA document? How does this level of
detail compare to what is considered a full NEPA analysis?
For purposes of transportation planning alone, a planning-level
analysis does not need to rise to the level of detail required in
the NEPA process. Rather, it needs to be accurate and up-to-date,
and should adequately support recommended improvements in the
statewide or metropolitan long-range transportation plan. The
SAFETEA-LU requires transportation planning processes to focus on
setting a context and following acceptable procedures. For example,
the SAFETEA-LU requires a ``discussion of the types of potential
environmental mitigation activities'' and potential areas for their
implementation, rather than details on specific strategies. The
SAFETEA-LU also emphasizes consultation with Federal, State, and
Tribal land management, wildlife, and regulatory agencies.
However, the Environmental Assessment (EA) or Environmental
Impact Statement (EIS) ultimately will be judged by the standards
applicable under the NEPA regulations and guidance from the Council
on Environmental Quality (CEQ). To the extent the information
incorporated from the transportation planning process, standing
alone, does not contain all of the information or analysis required
by NEPA, then it will need to be supplemented by other information
contained in the EIS or EA that
[[Page 31837]]
would, in conjunction with the information from the plan,
collectively meet the requirements of NEPA. The intent is not to
require NEPA studies in the transportation planning process. As an
option, the NEPA analyses prepared for project development can be
integrated with transportation planning studies (see the response to
Question 9 for additional information).
3. What type and extent of involvement from Federal, Tribal, State,
and local environmental, regulatory, and resource agencies is
needed in the transportation planning process in order for
planning-level decisions to be more readily accepted in the NEPA
process?
Sections 3005, 3006, and 6001 of the SAFETEA-LU established
formal consultation requirements for MPOs and State DOTs to employ
with environmental, regulatory, and resource agencies in the
development of long-range transportation plans. For example,
metropolitan transportation plans now ``shall include a discussion
of the types of potential environmental mitigation activities and
potential areas to carry out these activities, including activities
that may have the greatest potential to restore and maintain the
environmental functions affected by the [transportation] plan,'' and
that these planning-level discussions ``shall be developed in
consultation with Federal, State, and Tribal land management,
wildlife, and regulatory agencies.'' In addition, MPOs ``shall
consult, as appropriate, with State and local agencies responsible
for land use management, natural resources, environmental
protection, conservation, and historic preservation concerning the
development of a long-range transportation plan,'' and that this
consultation ``shall involve, as appropriate, comparison of
transportation plans with State conservation plans or maps, if
available, or comparison of transportation plans to inventories of
natural or historic resources, if available.'' Similar SAFETEA-LU
language addresses the development of the long-range statewide
transportation plan, with the addition of Tribal conservation plans
or maps to this planning-level ``comparison.''
In addition, section 6002 of the SAFETEA-LU established several
mechanisms for increased efficiency in environmental reviews for
project decisionmaking. For example, the term ``lead agency''
collectively means the U.S. Department of Transportation and a State
or local governmental entity serving as a joint lead agency for the
NEPA process. In addition, the lead agency is responsible for
inviting and designating ``participating agencies'' (i.e., other
Federal or non-Federal agencies that may have an interest in the
proposed project). Any Federal agency that is invited by the lead
agency to participate in the environmental review process for a
project shall be designated as a participating agency by the lead
agency unless the invited agency informs the lead agency, in
writing, by the deadline specified in the invitation that the
invited agency:
(a) Has no jurisdiction or authority with respect to the
project; (b) has no expertise or information relevant to the
project; and (c) does not intend to submit comments on the project.
Past successful examples of using transportation planning
products in NEPA analysis are based on early and continuous
involvement of environmental, regulatory, and resource agencies.
Without this early coordination, environmental, regulatory, and
resource agencies are more likely to expect decisions made or
analyses conducted in the transportation planning process to be
revisited during the NEPA process. Early participation in
transportation planning provides environmental, regulatory, and
resource agencies better insight into the needs and objectives of
the locality. Additionally, early participation provides an
important opportunity for environmental, regulatory, and resource
agency concerns to be identified and addressed early in the process,
such as those related to permit applications. Moreover, Federal,
Tribal, State, and local environmental, regulatory, and resource
agencies are able to share data on particular resources, which can
play a critical role in determining the feasibility of a
transportation solution with respect to environmental impacts. The
use of other agency planning outputs can result in a transportation
project that could support multiple goals (transportation,
environmental, and community). Further, planning decisions by these
other agencies may have impacts on long-range transportation plans
and/or the STIP/TIP, thereby providing important input to the
transportation planning process and advancing integrated
decisionmaking.
4. What is the procedure for using decisions or analyses from the
transportation planning process?
The lead agencies jointly decide, and must agree, on what
processes and consultation techniques are used to determine the
transportation planning products that will be incorporated into the
NEPA process. At a minimum, a robust scoping/early coordination
process (which explains to Federal and State environmental,
regulatory, and resource agencies and the public the information
and/or analyses utilized to develop the planning products, how the
purpose and need was developed and refined, and how the design
concept and scope were determined) should play a critical role in
leading to informed decisions by the lead agencies on the
suitability of the transportation planning information, analyses,
documents, and decisions for use in the NEPA process. As part of a
rigorous scoping/early coordination process, the FHWA and the FTA
should ensure that the transportation planning results are
appropriately documented, shared, and used.
5. To what extent can the FHWA/FTA provide up-front assurance that
decisions and additional investments made in the transportation
planning process will allow planning-level decisions and analyses
to be used in the NEPA process?
There are no guarantees. However, the potential is greatly
improved for transportation planning processes that address the ``3-
C'' planning principles (comprehensive, cooperative, and
continuous); incorporate the intent of NEPA through the
consideration of natural, physical, and social effects; involve
environmental, regulatory, and resource agencies; thoroughly
document the transportation planning process information, analysis,
and decision; and vet the planning results through the applicable
public involvement processes.
6. What considerations will the FHWA/FTA take into account in their
review of transportation planning products for acceptance in
project development/NEPA?
The FHWA and the FTA will give deference to decisions resulting
from the transportation planning process if the FHWA and FTA
determine that the planning process is consistent with the ``3-C''
planning principles and when the planning study process,
alternatives considered, and resulting decisions have a rational
basis that is thoroughly documented and vetted through the
applicable public involvement processes. Moreover, any applicable
program-specific requirements (e.g., those of the Congestion
Mitigation and Air Quality Improvement Program or the FTA's Capital
Investment Grant program) also must be met.
The NEPA requires that the FHWA and the FTA be able to stand
behind the overall soundness and credibility of analyses conducted
and decisions made during the transportation planning process if
they are incorporated into a NEPA document. For example, if systems-
level or other broad objectives or choices from the transportation
plan are incorporated into the purpose and need statement for a NEPA
document, the FHWA and the FTA should not revisit whether these are
the best objectives or choices among other options. Rather, the FHWA
and the FTA review would include making sure that objectives or
choices derived from the transportation plan were: Based on
transportation planning factors established by Federal law; reflect
a credible and articulated planning rationale; founded on reliable
data; and developed through transportation planning processes
meeting FHWA and FTA statutory and regulatory requirements. In
addition, the basis for the goals and choices must be documented and
included in the NEPA document. The FHWA/FTA reviewers do not need to
review whether assumptions or analytical methods used in the studies
are the best available, but, instead, need to assure that such
assumptions or analytical methods are reasonable, scientifically
acceptable, and consistent with goals, objectives, and policies set
forth in long-range transportation plans. This review would include
determining whether: (a) Assumptions have a rational basis and are
up-to-date and (b) data, analytical methods, and modeling techniques
are reliable, defensible, reasonably current, and meet data quality
requirements.
[[Page 31838]]
II. Substantive Issues
General Issues To Be Considered
7. What should be considered in order to rely upon transportation
planning studies in NEPA?
The following questions should be answered prior to accepting
studies conducted during the transportation planning process for use
in NEPA. While not a ``checklist,'' these questions are intended to
guide the practitioner's analysis of the planning products:
How much time has passed since the planning studies and
corresponding decisions were made?
Were the future year policy assumptions used in the
transportation planning process related to land use, economic
development, transportation costs, and network expansion consistent
with those to be used in the NEPA process?
Is the information still relevant/valid?
What changes have occurred in the area since the study
was completed?
Is the information in a format that can be appended to
an environmental document or reformatted to do so?
Are the analyses in a planning-level report or document
based on data, analytical methods, and modeling techniques that are
reliable, defensible, and consistent with those used in other
regional transportation studies and project development activities?
Were the FHWA and FTA, other agencies, and the public
involved in the relevant planning analysis and the corresponding
planning decisions?
Were the planning products available to other agencies
and the public during NEPA scoping?
During NEPA scoping, was a clear connection between the
decisions made in planning and those to be made during the project
development stage explained to the public and others? What was the
response?
Are natural resource and land use plans being informed
by transportation planning products, and vice versa?
Purpose and Need
8. How can transportation planning be used to shape a project's
purpose and need in the NEPA process?
A sound transportation planning process is the primary source of
the project purpose and need. Through transportation planning, State
and local governments, with involvement of stakeholders and the
public, establish a vision for the region's future transportation
system, define transportation goals and objectives for realizing
that vision, decide which needs to address, and determine the
timeframe for addressing these issues. The transportation planning
process also provides a potential forum to define a project's
purpose and need by framing the scope of the problem to be addressed
by a proposed project. This scope may be further refined during the
transportation planning process as more information about the
transportation need is collected and consultation with the public
and other stakeholders clarifies other issues and goals for the
region.
23 U.S.C. 139(f), as amended by the SAFETEA-LU Section 6002,
provides additional focus regarding the definition of the purpose
and need and objectives. For example, the lead agency, as early as
practicable during the environmental review process, shall provide
an opportunity for involvement by participating agencies and the
public in defining the purpose and need for a project. The statement
of purpose and need shall include a clear statement of the
objectives that the proposed action is intended to achieve, which
may include: (a) Achieving a transportation objective identified in
an applicable statewide or metropolitan transportation plan; (b)
supporting land use, economic development, or growth objectives
established in applicable Federal, State, local, or Tribal plans;
and (c) serving national defense, national security, or other
national objectives, as established in Federal laws, plans, or
policies.
The transportation planning process can be utilized to develop
the purpose and need in the following ways:
(a) Goals and objectives from the transportation planning
process may be part of the project's purpose and need statement;
(b) A general travel corridor or general mode or modes (e.g.,
highway, transit, or a highway/transit combination) resulting from
planning analyses may be part of the project's purpose and need
statement;
(c) If the financial plan for a metropolitan transportation plan
indicates that funding for a specific project will require special
funding sources (e.g., tolls or public-private financing), such
information may be included in the purpose and need statement; or
(d) The results of analyses from management systems (e.g.,
congestion, pavement, bridge, and/or safety) may shape the purpose
and need statement.
The use of these planning-level goals and choices must be
appropriately explained during NEPA scoping and in the NEPA
document.
Consistent with NEPA, the purpose and need statement should be a
statement of a transportation problem, not a specific solution.
However, the purpose and need statement should be specific enough to
generate alternatives that may potentially yield real solutions to
the problem at-hand. A purpose and need statement that yields only
one alternative may indicate a purpose and need that is too narrowly
defined.
Short of a fully integrated transportation decisionmaking
process, many State DOTs develop information for their purpose and
need statements when implementing interagency NEPA/Section 404
process merger agreements. These agreements may need to be expanded
to include commitments to share and utilize transportation planning
products when developing a project's purpose and need.
9. Under what conditions can the NEPA process be initiated in
conjunction with transportation planning studies?
The NEPA process may be initiated in conjunction with
transportation planning studies in a number of ways. A common method
is the ``tiered EIS,'' in which the first-tier EIS evaluates general
travel corridors, modes, and/or packages of projects at a planning
level of detail, leading to the refinement of purpose and need and,
ideally, selection of the design concept and scope for a project or
series of projects. Subsequently, second-tier NEPA review(s) of the
resulting projects would be performed in the usual way. The first-
tier EIS uses the NEPA process as a tool to involve environmental,
regulatory, and resource agencies and the public in the planning
decisions, as well as to ensure the appropriate consideration of
environmental factors in these planning decisions.
Corridor or subarea analyses/studies are another option when the
long-range transportation plan leaves open the possibility of
multiple approaches to fulfill its goals and objectives. In such
cases, the formal NEPA process could be initiated through
publication of a NOI in conjunction with a corridor or subarea
planning study.
Alternatives
10. In the context of this Appendix, what is the meaning of the
term ``alternatives''?
This Appendix uses the term ``alternatives'' as specified in the
NEPA regulations (40 CFR 1502.14), where it is defined in its
broadest sense to include everything from major modal alternatives
and location alternatives to minor design changes that would
mitigate adverse impacts. This Appendix does not use the term as it
is used in many other contexts (e.g., ``prudent and feasible
alternatives'' under Section 4(f) of the Department of
Transportation Act or the ``Least Environmentally Damaging
Practicable Alternative'' under the Clean Water Act.
11. Under what circumstances can alternatives be eliminated from
detailed consideration during the NEPA process based on information
and analysis from the transportation planning process?
There are two ways in which the transportation planning process
can begin limiting the alternative solutions to be evaluated during
the NEPA process: (a) Shaping the purpose and need for the project;
or (b) evaluating alternatives during planning studies and
eliminating some of the alternatives from detailed study in the NEPA
process prior to its start. Each approach requires careful
attention, and is summarized below.
(a) Shaping the Purpose and Need for the Project: The
transportation planning process should shape the purpose and need
and, thereby, the range of reasonable alternatives. With proper
documentation and public involvement, a purpose and need derived
from the planning process can legitimately narrow the alternatives
analyzed in the NEPA process. See the response to Question 8 for
further discussion on how the planning process can shape the purpose
and need used in the NEPA process.
For example, the purpose and need may be shaped by the
transportation planning process in a manner that consequently
narrows the range of alternatives that must be considered in detail
in the NEPA document when:
(1) The transportation planning process has selected a general
travel corridor as best
[[Page 31839]]
addressing identified transportation problems and the rationale for
the determination in the planning document is reflected in the
purpose and need statement of the subsequent NEPA document;
(2) The transportation planning process has selected a general
mode (e.g., highway, transit, or a highway/transit combination) that
accomplishes its goals and objectives, and these documented
determinations are reflected in the purpose and need statement of
the subsequent NEPA document; or
(3) The transportation planning process determines that the
project needs to be funded by tolls or other non-traditional funding
sources in order for the long-range transportation plan to be
fiscally constrained or identifies goals and objectives that can
only be met by toll roads or other non-traditional funding sources,
and that determination of those goals and objectives is reflected in
the purpose and need statement of the subsequent NEPA document.
(b) Evaluating and Eliminating Alternatives During the
Transportation Planning Process: The evaluation and elimination of
alternatives during the transportation planning process can be
incorporated by reference into a NEPA document under certain
circumstances. In these cases, the planning study becomes part of
the NEPA process and provides a basis for screening out
alternatives. As with any part of the NEPA process, the analysis of
alternatives to be incorporated from the process must have a
rational basis that has been thoroughly documented (including
documentation of the necessary and appropriate vetting through the
applicable public involvement processes). This record should be made
available for public review during the NEPA scoping process.
See responses to Questions 4, 5, 6, and 7 of this appendix for
additional elements to consider with respect to acceptance of
planning products for NEPA documentation and the response to
Question 12 of this appendix on the information or analysis from the
transportation planning process necessary for supporting the
elimination of an alternative(s) from detailed consideration in the
NEPA process.
Development of planning Alternatives Analysis studies, required
prior to MAP-21 for projects seeking funds through FTA's Capital
Investment Grant program, are now optional, but may still be used to
narrow the alternatives prior to the NEPA review, just as other
planning studies may be used. In fact, through planning studies, FTA
may be able to narrow the alternatives considered in detail in the
NEPA document to the No-Build (No Action) alternative and the
Locally Preferred Alternative. If the planning process has included
the analysis and stakeholder involvement that would be undertaken in
a first tier NEPA process, then the alternatives screening conducted
in the transportation planning process may be incorporated by
reference, described, and relied upon in the project-level NEPA
document. At that point, the project-level NEPA analysis can focus
on the remaining alternatives.
12. What information or analysis from the transportation planning
process is needed in an EA or EIS to support the elimination of an
alternative(s) from detailed consideration?
The section of the EA or EIS that discusses alternatives
considered but eliminated from detailed consideration should:
(a) Identify any alternatives eliminated during the
transportation planning process (this could include broad categories
of alternatives, as when a long-range transportation plan selects a
general travel corridor based on a corridor study, thereby
eliminating all alternatives along other alignments);
(b) Briefly summarize the reasons for eliminating the
alternative; and
(c) Include a summary of the analysis process that supports the
elimination of alternatives (the summary should reference the
relevant sections or pages of the analysis or study) and incorporate
it by reference or append it to the NEPA document.
Any analyses or studies used to eliminate alternatives from
detailed consideration should be made available to the public and
participating agencies during the NEPA scoping process and should be
reasonably available during comment periods.
Alternatives passed over during the transportation planning
process because they are infeasible or do not meet the NEPA
``purpose and need'' can be omitted from the detailed analysis of
alternatives in the NEPA document, as long as the rationale for
elimination is explained in the NEPA document. Alternatives that
remain ``reasonable'' after the planning-level analysis must be
addressed in the EIS, even when they are not the preferred
alternative. When the proposed action evaluated in an EA involves
unresolved conflicts concerning alternative uses of available
resources, NEPA requires that appropriate alternatives be studied,
developed, and described.
Affected Environment and Environmental Consequences
13. What types of planning products provide analysis of the
affected environment and environmental consequences that are useful
in a project-level NEPA analysis and document?
The following planning products are valuable inputs to the
discussion of the affected environment and environmental
consequences (both its current state and future state in the absence
of the proposed action) in the project-level NEPA analysis and
document:
Regional development and growth analyses;
Local land use, growth management, or development
plans; and
Population and employment projections.
The following are types of information, analysis, and other
products from the transportation planning process that can be used
in the discussion of the affected environment and environmental
consequences in an EA or EIS:
(a) Geographic information system (GIS) overlays showing the
past, current, or predicted future conditions of the natural and
built environments;
(b) Environmental scans that identify environmental resources
and environmentally sensitive areas;
(c) Descriptions of airsheds and watersheds;
(d) Demographic trends and forecasts;
(e) Projections of future land use, natural resource
conservation areas, and development; and
(f) The outputs of natural resource planning efforts, such as
wildlife conservation plans, watershed plans, special area
management plans, and multiple species habitat conservation plans.
However, in most cases, the assessment of the affected
environment and environmental consequences conducted during the
transportation planning process will not be detailed or current
enough to meet NEPA standards and, thus, the inventory and
evaluation of affected resources and the analysis of consequences of
the alternatives will need to be supplemented with more refined
analysis and possibly site-specific details during the NEPA process.
14. What information from the transportation planning process is
useful in describing a baseline for the NEPA analysis of indirect
and cumulative impacts?
Because the nature of the transportation planning process is to
look broadly at future land use, development, population increases,
and other growth factors, the planning analysis can provide the
basis for the assessment of indirect and cumulative impacts required
under NEPA. The consideration in the transportation planning process
of development, growth, and consistency with local land use, growth
management, or development plans, as well as population and
employment projections, provides an overview of the multitude of
factors in an area that are creating pressures not only on the
transportation system, but on the natural ecosystem and important
environmental and community resources. An analysis of all reasonably
foreseeable actions in the area also should be a part of the
transportation planning process. This planning-level information
should be captured and utilized in the analysis of indirect and
cumulative impacts during the NEPA process.
To be used in the analysis of indirect and cumulative impacts,
such information should:
(a) Be sufficiently detailed that differences in consequences of
alternatives can be readily identified;
(b) Be based on current data (e.g., data from the most recent
Census) or be updated by additional information;
(c) Be based on reasonable assumptions that are clearly stated;
and/or
(d) Rely on analytical methods and modeling techniques that are
reliable, defensible, and reasonably current.
Environmental Mitigation
15. How can planning-level efforts best support advance mitigation,
mitigation banking, and priorities for environmental mitigation
investments?
A lesson learned from efforts to establish mitigation banks and
advance mitigation
[[Page 31840]]
agreements and alternative mitigation options is the importance of
beginning interagency discussions during the transportation planning
process. Development pressures, habitat alteration, complicated real
estate transactions, and competition for potential mitigation sites
by public and private project proponents can encumber the already
difficult task of mitigating for ``like'' value and function and
reinforce the need to examine mitigation strategies as early as
possible.
Robust use of remote sensing, GIS, and decision support systems
for evaluating conservation strategies are all contributing to the
advancement of natural resource and environmental planning. The
outputs from environmental planning can now better inform
transportation planning processes, including the development of
mitigation strategies, so that transportation and conservation goals
can be optimally met. For example, long-range transportation plans
can be screened to assess the effect of general travel corridors or
density, on the viability of sensitive plant and animal species or
habitats. This type of screening provides a basis for early
collaboration among transportation and environmental staffs, the
public, and regulatory agencies to explore areas where impacts must
be avoided and identify areas for mitigation investments. This can
lead to mitigation strategies that are both more economical and more
effective from an environmental stewardship perspective than
traditional project-specific mitigation measures.
III. Administrative Issues
16. Are federal funds eligible to pay for these additional, or more
in depth, environmental studies in transportation planning?
Yes. For example, the following FHWA and FTA funds may be
utilized for conducting environmental studies and analyses within
transportation planning:
FHWA planning and research funds, as defined under 23
CFR Part 420 (e.g., Metropolitan Planning (PL), Statewide Planning
and Research (SPR), National Highway System (NHS), Surface
Transportation Program (STP), and Equity Bonus); and
FTA planning and research funds (49 U.S.C. 5303 and 49
U.S.C. 5313(b)), urban formula funds (49 U.S.C. 5307), and (in
limited circumstances) transit capital investment funds (49 U.S.C.
5309).
The eligible transportation planning-related uses of these funds
may include: (a) Conducting feasibility or subarea/corridor needs
studies and (b) developing system-wide environmental information/
inventories (e.g., wetland banking inventories or standards to
identify historically significant sites). Particularly in the case
of PL and SPR funds, the proposed expenditure must be closely
related to the development of transportation plans and programs
under 23 U.S.C. 134-135 and 49 U.S.C. 5303-5306.
For FHWA funding programs, once a general travel corridor or
specific project has progressed to a point in the preliminary
engineering/NEPA phase that clearly extends beyond transportation
planning, additional in-depth environmental studies must be funded
through the program category for which the ultimate project
qualifies (e.g., NHS, STP, Interstate Maintenance, and/or Bridge),
rather than PL or SPR funds.
Another source of funding is FHWA's Transportation Enhancement
program, which may be used for activities such as: Conducting
archeological planning and research; developing inventories such as
those for historic bridges and highways, and other surface
transportation-related structures; conducting studies to determine
the extent of water pollution due to highway runoff; and conducting
studies to reduce vehicle-caused wildlife mortality while
maintaining habitat connectivity.
The FHWA and the FTA encourage State DOTs, MPOs, and public
transportation operators to seek partners for some of these studies
from environmental, regulatory, and resource agencies, non-
government organizations, and other government and private sector
entities with similar data needs, or environmental interests. In
some cases, these partners may contribute data and expertise to the
studies, as well as funding.
17. What staffing or organizational arrangements may be helpful in
allowing planning products to be accepted in the NEPA process?
Certain organizational and staffing arrangements may support a
more integrated approach to the planning/NEPA decisionmaking
continuum. In many cases, planning organizations do not have
environmental expertise on staff or readily accessible. Likewise,
the review and regulatory responsibilities of many environmental,
regulatory, and resource agencies make involvement in the
transportation planning process a challenge for staff resources.
These challenges may be partially met by improved use of the outputs
of each agency's planning resources and by augmenting their
capabilities through greater use of GIS and remote sensing
technologies (see http://www.gis.fhwa.dot.gov/ for additional
information on the use of GIS). Sharing databases and the planning
products of local land use decision-makers and State and Federal
environmental, regulatory, and resource agencies also provide
efficiencies in acquiring and sharing the data and information
needed for both transportation planning and NEPA work.
Additional opportunities such as shared staff, training across
disciplines, and (in some cases) reorganizing to eliminate
structural divisions between planning and NEPA practitioners may
also need to be considered in order to better integrate NEPA
considerations into transportation planning studies. The answers to
the following two questions also contain useful information on
training and staffing opportunities.
18. How have environmental, regulatory, and resource agency
liaisons (federally- and state DOT-funded positions) and
partnership agreements been used to provide the expertise and
interagency participation needed to enhance the consideration of
environmental factors in the planning process?
For several years, States have utilized Federal and State
transportation funds to support focused and accelerated project
review by a variety of local, State, Tribal, and Federal agencies.
While Section 1309(e) of the TEA-21 and its successor in SAFETEA-LU
section 6002 speak specifically to transportation project
streamlining, there are other authorities that have been used to
fund positions, such as the Intergovernmental Cooperation Act (31
U.S.C. 6505). In addition, long-term, on-call consultant contracts
can provide backfill support for staff that are detailed to other
parts of an agency for temporary assignments. At last count (as of
2003), 246 positions were being funded. Additional information on
interagency funding agreements is available at: http://environment.fhwa.dot.gov/strmlng/igdocs/index.htm.
Moreover, every State has advanced a variety of stewardship and
streamlining initiatives that necessitate early involvement of
environmental, regulatory, and resource agencies in the project
development process. Such process improvements have: Addressed the
exchange of data to support avoidance and impact analysis;
established formal and informal consultation and review schedules;
advanced mitigation strategies; and resulted in a variety of
programmatic reviews. Interagency agreements and workplans have
evolved to describe performance objectives, as well as specific
roles and responsibilities related to new streamlining initiatives.
Some States have improved collaboration and efficiency by co-
locating environmental, regulatory, and resource and transportation
agency staff.
19. What training opportunities are available to MPOs, state DOTs,
public transportation operators and environmental, regulatory, and
resource agencies to assist in their understanding of the
transportation planning and NEPA processes?
Both the FHWA and the FTA offer a variety of transportation
planning, public involvement, and NEPA courses through the National
Highway Institute and/or the National Transit Institute. Of
particular note is the Linking Planning and NEPA Workshop, which
provides a forum and facilitated group discussion among and between
State DOT; MPO; Federal, Tribal, and State environmental,
regulatory, and resource agencies; and FHWA/FTA representatives (at
both the executive and program manager levels) to develop a State-
specific action plan that will provide for strengthened linkages
between the transportation planning and NEPA processes.
Moreover, the U.S. Fish and Wildlife Service offers Green
Infrastructure Workshops that are focused on integrating planning
for natural resources (``green infrastructure'') with the
development, economic, and other infrastructure needs of society
(``gray infrastructure'').
Robust planning and multi-issue environmental screening requires
input from a wide variety of disciplines, including information
technology; transportation planning; the NEPA process; and
regulatory, permitting, and environmental specialty areas (e.g.,
noise, air quality, and biology). Senior managers at transportation
and partner agencies can arrange a variety of
[[Page 31841]]
individual training programs to support learning curves and skill
development that contribute to a strengthened link of the
transportation planning and NEPA processes. Formal and informal
mentoring on an intra-agency basis can be arranged. Employee
exchanges within and between agencies can be periodically scheduled,
and persons involved with professional leadership programs can seek
temporary assignments with partner agencies.
IV. Additional Information on This Topic
Valuable sources of information are FHWA's environment Web site
(http://www.fhwa.dot.gov/environment/index.htm) and FTA's
environmental streamlining Web site (http://www.environment.fta.dot.gov). Another source of information and case
studies is NCHRP Report 8-38 (Consideration of Environmental Factors
in Transportation Systems Planning), which is available at http://www4.trb.org/trb/crp.nsf/All+Projects/NCHRP+8-38. In addition,
AASHTO's Center for Environmental Excellence Web site is
continuously updated with news and links to information of interest
to transportation and environmental professionals
(www.transportation.environment.org).
TITLE 49--TRANSPORTATION
0
2. Revise part 613 to read as follows:
PART 613--METROPOLITAN AND STATEWIDE AND NONMETROPOLITAN PLANNING
Subpart A--Metropolitan Transportation Planning and Programming
Sec.
613.100 Metropolitan transportation planning and programming.
Subpart B--Statewide and Nonmetropolitan Transportation Planning and
Programming
613.200 Statewide and Nonmetropolitan transportation planning and
programming.
Authority: 23 U.S.C. 134, 135, and 217(g); 42 U.S.C. 3334,
4233, 4332, 7410 et seq.; 49 U.S.C. 5303-5306, 5323(k); and 49 CFR
1.85, 1.51(f) and 21.7(a).
Subpart A--Metropolitan Transportation Planning and Programming
Sec. 613.100 Metropolitan transportation planning and programming.
The regulations in 23 CFR part 450, subpart C, shall be followed in
complying with the requirements of this subpart. The definitions in 23
CFR part 450, subpart A, shall apply.
Subpart B--Statewide and Nonmetropolitan Transportation Planning
and Programming
Sec. 613.200 Statewide and Nonmetropolitan transportation planning
and programming.
The regulations in 23 CFR part 450, subpart B, shall be followed in
complying with the requirements of this subpart. The definitions in 23
CFR part 450, subpart A, shall apply.
[FR Doc. 2014-12155 Filed 5-30-14; 8:45 am]
BILLING CODE 4910-22-P